Fickler v. Astrue
MEMORANDUM AND ORDER - This case is reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAELLE D. FICKLER,
MEMORANDUM AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner of the Social
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff Michaelle D. Fickler's disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The
Court has considered the parties' filings and the administrative record. For
the reasons discussed below, the Commissioner's decision is reversed and
remanded for further proceedings consistent with this opinion.
Fickler filed an application for disability insurance benefits in March
2009. T13, 53. Her claims were denied initially and on reconsideration. T53,
55, 63–71. Following a hearing in June 2010, the administrative law judge
(ALJ) found that Fickler was not disabled as defined under 42 U.S.C. §§
416(i) or 423(d), and therefore not entitled to disability benefits. The ALJ
determined that, although Fickler suffered from several severe impairments,
and could no longer perform her past relevant work, she had the residual
functional capacity to perform other jobs that exist in significant numbers in
the national economy. T13–21. On October 27, 2011, after reviewing
additional evidence and a brief submitted by Fickler, the Appeals Council of
the Social Security Administration denied Fickler's request for review of the
ALJ's decision. T1–4. Fickler's complaint seeks review of the ALJ's decision
as the final decision of the Commissioner under sentence four of 42 U.S.C.
§ 405(g). Filing 1.
I. Medical Records
Fickler alleged that she became disabled beginning January 4, 2005.
T109. The record in this case details Fickler's life from 1998 to 2010.
Although the records from 1998 through 2004 do not bear directly on her
disability status, they provide context for the health issues Fickler has
alleged to be disabling, and a history of her various self-reported symptoms,
diagnoses, and attempts at treatment.
A. Fickler's Work and Medical History, 1998 to early 2005
From 1998 to January 2005, Fickler worked at Tyson Foods, in a
variety of positions. T137, 174. When she was not on light duty,1 her job
involved significant physical exertion. T174. Fickler began noticing aching
and soreness in both hands around 1999 or 2000, and this became more
significant in December 2001. T403. Over-the-counter painkillers offered
little relief. T403. Then, on January 31, 2002, Fickler was in a car accident.
T396. That day, she reported pain in the back of her neck and in both
shoulders, and over time reported pain and numbness in various parts of her
body. T397, 668, 1222, 1236. She sought medical attention, T1216, and in
April 2002, she was placed on light work duty at Tyson and referred to
physical therapy focusing on her wrists and carpal tunnels. T403, 573. By
August 2002, Fickler was discharged from physical therapy and although she
had shown some improvement, she still had discomfort in her forearms and
wrists that was aggravated by work. T561.
In late August 2002, Fickler was seen by Dr. David Clough for an
orthopedic evaluation, and was diagnosed with bilateral carpal tunnel
syndrome, bilateral epicondylitis,2 and left rotator cuff and biceps tendinitis.
T402. Fickler reported that she had tried multiple workstation changes at
her job, but with little improvement. T402. In October, she met with Dr.
Lawrence M. Rubens, who concluded that further physical therapy would not
help, and recommended that Fickler be permanently restricted from working
Fickler worked on light duty for at least some portions of 2002 to 2005; it is not clear what
this entailed. T169–170.
Or as it is more commonly known, "tennis elbow," which refers to "chronic inflammation at
the origin of the extensor muscles of the forearm from the lateral epicondyle of the
humerus, as a result of unusual or repetitive strain (not necessarily from playing tennis)."
Stedman's Medical Dictionary 573 (27th ed. 2000).
at or above shoulder level, and avoid exposure to cold working environments,
which aggravated the condition. T466.
In November 2002, Fickler met with Dr. D.W. Hoehne regarding pain
from the automobile accident. T436. Hoehne diagnosed her with chronic
spinal pain, cervical and thoracic subluxation complexes, myalgia, brachial
neuralgia, and shoulder pain with internal derangement. Instead of surgery,
he recommended spinal and extremity manipulative treatment, electric
muscle stimulation, ultrasound therapy, and cryotherapy. T436, 443–48.
Fickler was treated for approximately 2 months, then discontinued treatment
because she was not sure if her insurance would cover the treatment and she
could not afford it on her own. T436. In March 2003, Fickler contacted
Hoehne and noted that her symptoms were still making it difficult to work.
T436. She considered returning for chiropractic treatment but decided she
could not afford it. T436.
In a June 2004 "Injury/Illness Status Report" provided by Tyson,
Fickler reported pain in her right fingers, back, and both shoulders. T227. In
August 2004, a doctor with Tyson diagnosed her with bilateral repetitive
strain injury to her shoulders. T227. From August to October 2004, Fickler
underwent a number of physical therapy sessions for pain and decreased
range of motion and strength in both shoulders. T233.
Fickler stopped working at Tyson after January 4, 2005. T30. At that
time, she was pregnant with her third child and was near her delivery date. 3
T314, 343. Fickler later testified that she stopped working because she was
experiencing a lot of back pain at work, and because she was so close to her
due date, her doctor recommended that she go ahead and take maternity
leave. T30. Fickler's third child was born a few weeks later. T48, 343.
Fickler testified that after the birth of her third child, she had a lot of
problems. T31. Although her obstetrician-gynecologist ("OB-GYN") released
her to return to work in March 2005, she was still experiencing back pain and
headaches. T46, 277. The OB-GYN told her this was not an uncommon side
effect of epidurals and that it should improve. T46. When her back pain did
not improve, Fickler sought further treatment. T46, 277. In March 2005,
Fickler underwent an MRI scan of her lumbar spine. The scan revealed
"[m]inimal early disko-osteophytic4 changes" and "[l]eft S1 nerve root
Fickler's two older children were born in 1995 and 1999. T314.
Osteophytes are more commonly known as bone spurs; when these develop on vertebrae
they may impinge on nerves and cause pain. Cedars-Sinai, Bone Spurs (Osteophytes),
accessed March 15, 2013).
B. Fickler's Visits to Physician's Assistant Barry Tietgen
In April 2005, Fickler met with Barry Tietgen, a physician assistant
(PA-C) with the Pierce Medical Clinic, complaining of back pain and
symptoms of radiculopathy. T277. She had been unable to return to work
since her baby was born in January due to back pain. T277. She reported
pain throughout her back, in her left lower leg, and numbness in her right
toes. T277. Tietgen noted point tenderness throughout her back. He
examined the MRI from March and noted it showed "nothing real dramatic.
Looks like the vertebral heights are well maintained." T277.
Tietgen's impression was that Fickler had fibromyalgia. T277. He also
noted that Fickler was overweight and had a deep lordosis. T277. Because
she was breastfeeding at that time, he could not recommend the medications
used to treat the symptoms of fibromyalgia. T277, 275. Instead, he advised
her to stay physically active and work on weight reduction. Tietgen also
noted that she had minimal degenerative joint disease of the spine and
congenital spina bifida. T527. He recommended that she should avoid
prolonged standing in stationary positions. T527. With Tietgen's approval,
Fickler took leave from work to see if her condition would improve with time
off and rest. T46.
Tietgen saw Fickler again in May 2005. T276. She was still reporting
pain. T276. Because she was still breastfeeding, she had not started any
medications for fibromyalgia. T276. Tietgen told her that she should lose
weight and start an exercise program, and that this was "part of the
treatment of fibromyalgia." T276. He advised her to avoid prolonged standing
for 30 minutes at a time. T276.
Fickler met with Tietgen in June and July 2005 and continued to report
painful symptoms. T274–75. With prolonged standing, she experienced
numbness and pain in her thighs and pain in her lower back. T275. She
fatigued easily. T274. Tietgen continued to recommend she stay off work.
T275. He noted that her job at Tyson required her to stand for 10-hour days
and operate equipment in a "chronic, repetitive" manner. T275. Tietgen again
Nerve root diverticulum are also known as "Tarlov's perineural cysts." Richard Glenn
Fessler & Laligam Sekhar, Atlas of Neurosurgical Techniques, 372 (Thiem 2006). "Tarlov
cysts are fluid-filled sacs that most often affect nerve roots at the lower end of the spine
(sacrum). Such cysts typically cause no symptoms and are found incidentally on magnetic
resonance imaging (MRI) studies done for other reasons." John Atkinson, Mayo Clinic,
Tarlov Cysts: A Cause of Low Back Pain?, http://www.mayoclinic.com/health/tarlovcysts/AN01603 (last accessed March 15, 2013). In some cases, the cysts may expand and put
pressure on nerve roots, causing pain. Id.
noted that Fickler's health issues were complicated by her weight. In July,
Fickler, who was approximately 5'4", weighed 294 pounds. T274. Tietgen
informed her that he would like her to lose 44 pounds as a starting point, and
they reviewed proper nutrition. T274. At that point, Fickler was trying to
wean her third child from nursing, but was having trouble. T274. Tietgen
saw Fickler again in October 2005 for a follow-up. T273. She had still not
returned to work. T273. Fickler rated her pain as 8/10 for the most part.
T273. Her child was still breastfeeding, so there was little Tietgen could offer
in the way of treatment. T273. He believed that she could not stand for the
long periods required by her job at Tyson. T273. Tietgen referred Fickler to
Dr. John Hurley, a rheumatologist. T269, 273.
Hurley evaluated Fickler in December 2005. Fickler reported constant,
diffuse pain that had lasted for some time. T269. It was worsened by
excessive activity and helped somewhat by rest. T269. It led to poor sleeping
and stiffness in the morning that lasted several hours and sometimes all day.
T269. Her weight was up approximately 15 to 20 pounds due to lack of
Hurley noted that she had "some difficulty getting from the chair to the
examining table." T270. She had a full range of motion in the cervical spine.
T270. An MRI of her back revealed arthritis. T269. A soft tissue examination
revealed tenderness in many points on her back, upper buttocks, and parts of
her knees; with very minimal, if any, pain in the control areas. T270. Hurley
diagnosed her with fibromyalgia and osteoarthritis. T270. Hurley agreed that
Fickler would have "great difficulty performing what she explained as her
previous occupation at Tyson Foods." T270. Hurley also agreed that treating
Fickler was "difficult" because she was still breastfeeding. T270. Around this
same time, Fickler's youngest child was diagnosed with leukemia. T269.
Hurley noted that because of this, the child was not taking solid foods, and
Fickler was still breastfeeding. T270.
C. Tietgen's Functional Assessments
In January 2006, Fickler was laid off for not returning to work;
thereafter she was on short- and long-term disability for approximately 2
years, through 2007. T47, 170, 196. In May 2006, Tietgen completed an
"Estimated Functional Abilities" form for Fickler, in connection with her
disability insurance. T528. He noted that her fibromyalgia "may improve
once she is able to begin treatment with medication."6 T528. Tietgen stated
It is not clear from the record whether Fickler was still breastfeeding at this point. On this
form, Tietgen wrote that Fickler was unable to take medications "while she is breastfeeding
her young son which as far as I know she continues to do." T528. It appears that Tietgen
that, in an 8-hour work day, Fickler was capable of 2–3 hours of "sedentary
activity," defined as a maximum of lifting or carrying 10 pounds, walking and
standing on occasion, and sitting 6 to 8 hours. T528. Tietgen also wrote that
she was capable of 1–2 hours of "light activity" each workday, defined as 20
pounds maximum lifting, carrying 10-pound articles frequently, being able to
do most jobs involving standing with a degree of pushing and pulling, and
standing 6 to 8 hours a workday. T528. On another portion of the form,
Tietgen wrote that Fickler could frequently lift 1 to 10 pounds, occasionally
lift 11 to 20 pounds, and could never lift any greater weight. T529. She could
never kneel or crawl, but could occasionally bend, climb stairs, reach above
her shoulders, and push or pull up to 10 pounds.7 T529. He also stated she
could use both hands for simple grasping, fine manipulation, and medium
dexterity, but neither for a power grip. T529.
In October 2007, Tietgen examined Fickler, to re-evaluate her
fibromyalgia and to help her fill out insurance forms. T285, 526. He had not
seen her since 2005. T526. Fickler reported that she had not seen him
because she was focusing on caring for her son with leukemia, which often
kept her at hospitals outside of Norfolk. T285. She reported weaker bilateral
handgrips. T285. Fickler had a "fairly good range of motion" in her arms but
could not quite extend them above her head. T285. She had positive trigger
points for fibromyalgia in multiple areas and Tietgen wrote these were "quite
convincing and she retracks [sic] in discomfort." T285. Fickler reported that
she was sleeping poorly, would get very fatigued, and could not work at any
task for any length of time without having to rest. T285. However, Tietgen
noted she appeared mentally alert. T285. She also stated that "[e]ach and
every step is painful to her in her feet and legs." T285.
Fickler was no longer breastfeeding, so Tietgen prescribed Elavil,
diclofenac, and Flexeril. T285. He also prescribed physical therapy, and
wanted her to come back in 4 weeks for a reassessment.8 T285. After this
did not meet with Fickler when he filled out this form. When he saw her again in 2007, he
wrote that he had not seen her since 2005. T526.
There are two versions of this form, both apparently filled out by Tietgen. T529, 530. They
are the same, except that one states she can occasionally push or pull 25 pounds. T530.
Neither form is dated, but it is safe to assume they were filled out in connection with either
the 2006 or 2007 assessment, or that one was filled out for each.
Elavil (amitriptyline) is an anti-depressant, but is used in the treatment of fibromyalgia
Maryland Medical Center, Fibromyalgia - Medications, http://www.umm.edu/patiented/arti
cles/what_medical_treatments_fibromyalgia_000076_10.htm (last accessed March 15,
meeting, Tietgen filled out another "Estimated Functional Abilities" form for
Tickler, identical to the one he completed in March 2006. Compare T526 with
T528. He provided the same answers as before (i.e., that Fickler was capable
of 2–3 hours' sedentary activity and 1–2 hours' light activity each day). T526.
In late November 2007, Fickler found out that she was pregnant (and
had been since approximately September) with her fourth child. T48. She
contacted Tietgen's office and notified them she was discontinuing the
medications and physical therapy, due to her pregnancy and cost concerns.
D. The December 2007 Letter from Unum
In December 2007, Tietgen received a letter from Fickler's insurance
provider, Unum. T523–24. The letter summarized a telephone call between
an Unum representative and Tietgen that had occurred 2 days earlier. T523.
Unum had called Tietgen to ask him to clarify his opinion on Fickler's
ability to work. T523. As noted above, Tietgen provided identical opinions in
May 2006 and October 2007. See T526, 528. The Unum representative noted
that between these two assessments, in April 2007, Tietgen had reviewed and
agreed with a "formal Functional Capacity Examination" from March 2007.
That examination was conducted by one "Ms. Jarzynka." Jarzynka had found
that Fickler had "sustainable light work capacity; [and could] occasionally lift
10-20 pounds, frequently push/pull 10 pounds and sit, stand and walk 6-8
hours per day." T523. Tietgen had apparently agreed with this assessment,
although this was markedly different than the evaluations he provided in
March 2006 and October 2007. T523.
The Unum representative asked Tietgen to clarify this discrepancy.
According to Unum, Tietgen responded that there was "no way Ms. Fickler
had sustainable work capacity at a light level" and there was "no way she
was capable of working." T523. He based this assessment of her on an office
examination, which included testing activities such as rapid alternating arm
movements, her ability to reach overhead, and observation of bending and
squatting activities. T523. Tietgen reportedly concluded that Fickler had
"untreated fibromyalgia, but also noted that there are no physical deficits in
this symptom[-]based condition and that having a patient remain fully active
was a mainstay in treating this disorder." T523. However, Tietgen concluded
that her overall condition was such that she could not return to work, and
that recent attempts at treatment had been frustrated because she had
Diclofenac is a nonsteroidal anti-inflammatory drug (NSAID). The Merck Manual, Diclofen
ac (Systemic), http://www.merckmanuals.com/professional/lexicomp/diclofenac%20%28syste
mic%29.html (last accessed March 15, 2013).
become pregnant again. T523–24. Tietgen signed and returned the letter,
acknowledging that the Unum representative had "accurately captured the
essence" of their conversation.
Unfortunately, the record contains only this letter recounting the
telephone call with Tietgen. The evaluation apparently conducted by
Jarzynka is not before the Court. Nor is there any evidence of what
qualifications she possessed, or of the basis for her evaluation.
E. Fickler's Application for Social Security Benefits, Records from
2008 through 2009
In June 2008, Fickler gave birth to her fourth child. T326, 328. She
later testified that she nursed this child for approximately 14 months, which
would have ended around August 2009. T38. Then, around October 2009,
Fickler became pregnant with her fifth child. T49. The record does not show
that Fickler took any steps to address her health problems during the period
when she was no longer nursing and not yet pregnant.
In a "Disability Report" from April 2009, Fickler alleged disability as a
result of fibromyalgia, bilateral carpal tunnel syndrome and shoulder
problems, elbow pain, headaches, numbness and tingling in her arms and
legs, pain in her knees, hips, wrists, back, and neck, trouble sleeping, restless
legs, painful fat tumors in her back, arms, and stomach, spina bifida, and
"degeneration" of her back, neck, and spine. T146–47. She reported that her
wrists hurt "really bad so it's hard to do any activities for long periods of
time, especially the left wrist[.]" T147. Fickler could not stand for long
periods of time because her legs would go numb, tingle, and hurt. T147.
Going up and down the stairs was difficult because of her knee pain, and took
her some time. T147, 167. And her shoulder pain limited her ability to work
above her shoulders. T147. At that time, she was not taking any nonprescription medications. T152.
Fickler completed a "Daily Activities and Symptoms Report" in May
2009. T166. In a typical day, she said she cared for her children and tried to
do the dishes and laundry. She also helped her children with their homework
and helped the two smaller children bathe. Doing the dishes made her hands
hurt, and caused her legs to tingle and become numb after standing for a
while. Doing the laundry made her shoulders hurt. She had to stop and rest
frequently, and stretch and rub her muscles. T169. The pain in Fickler's hips,
arms, back, knees, and head made it hard to sleep, and she was often sleepdeprived and tired. T167. It took her a long time to get tasks done. Her carpal
tunnel syndrome made it difficult to grip and she often dropped things.
Fickler tried to do all of the indoor chores but could not finish them by
herself, and relied on her husband and children to help. T166. Her children
helped with vacuuming, sweeping, and mopping. She could not do any
outside chores such as raking or mowing; her family took care of these. She
would walk to her mailbox to get the mail once in a while. T167.
Fickler did not identify any difficulty caring for her own daily needs
except that she had to wear loose clothing and that it was difficult to get
socks on and off and to wear them all the time. T166. Cooking was difficult
because it was hard to be on her feet for long periods, so her family dined out
a lot, and she ate mostly simple meals, such as cereal. T166. Fickler did not
do much driving, because sitting in the car too long hurt her hips. T166.
When she went shopping, her husband would drop her off at the door. T166.
Because her family lived in the country, a few miles from town, they tried to
limit their trips into town, and her husband and children helped run errands.
Fickler reported not having any hobbies, except occasionally listening
to music, but she did not do that often because of frequent headaches. T167.
She did not go many places, and did not participate in any social clubs or
attend church. She stated that she was "not able to go for a lot of walks." She
would walk around the house, and sometimes to the mailbox. Fickler stated
that she did not watch much television, and when she did, it was usually
while she was doing something else. T167.
In response to the question, "How long can you stand at one time?"
Fickler answered that she could stand a little, but would then have to sit
down, and that she had to rest a lot. T167. "I have to take breaks and do a
little of this and then a little of that. My hands hurt to write a lot. My legs go
numb and tingle [if I] stand to [sic] long." She wrote "I have to sit and get up
and sit and get up. If I sit too long my back and neck and legs hurt. My legs,
feet, arms, and hands swell up with a lot of activity." Writing hurt her wrists
and elbows. T167.
Fickler described painful symptoms throughout her body, in varying
kinds and degrees, as well as weakness, restless legs, dizziness, shortness of
breath, fatigued wrists, and muscle spasms. T168. She explained that
sometimes if someone touched her, especially on her back, posterior, or legs,
it felt like she was being stabbed. Her joints felt as if they were bones rubbing
together painfully. She felt "like a cripple trying to walk" sometimes from the
soreness and stiffness. T168.
Fickler also filled out a "headache questionnaire" in May 2009, which
described serious and debilitating headaches in detail. T158–59. Fickler did
allege disability as a result of her headaches (T147) and briefly discussed her
headaches at the hearing (T37–38, 42). The ALJ noted her headaches in his
decision, but did not otherwise discuss them. T17. However, Fickler has not
argued this was error, and the Court will not discuss her headache symptoms
in any further detail.
F. Consultative Evaluation with Dr. Larry Birch
Fickler underwent a consultative evaluation by Dr. Larry Birch in
September 2009. T367–375. She still reported the same general symptoms.
T372. In his physical examination, Birch noted that Fickler had significant
gynoid lymphedema,9 as well as obesity. T373. He considered most of the
swelling in her body and lower extremities to be "fairly classic lymphedema"
but also noted significant abdominal obesity. T373. Birch noted she had some
difficulty in demonstrating "really agile movement" but that she could walk
across the examination room without assistance. T374. Squatting was
difficult due to the lymphedema, but overall her range of motion was
"extremely good for everything considered." T374. She was able to get on and
off the examination table, and turn from supine to prone and sit up (with
some difficulty). Throughout her body, her range of motion was "somewhat
slightly limited due to her obesity caused by her lymphedema in the lower
extremities[.]" T369–370, 374.
Birch found her upper extremities "entirely normal." T374. He found
that Fickler had limitations on quick and alternating movement, that lifting
and bending would be somewhat limited, and that squatting would be
difficult. T374. Birch noted that she claimed to suffer from congenital spina
bifida, but noted no neurological issues. T374–75. He could not explain her
shoulder and elbow pain, or her headaches. T375. Birch concluded:
Unfortunately her lymphedema has progressed up to where she
has gained over 120 pounds since her early adult life and with
the amount of lymphedema and tissue, the distortion caused [to]
the lower extremities is probably beyond treatment at this time
and does cause her some limitations as would be imposed by agile
movements using the lower extremities.
T374. Birch did not describe any more specific limitations on Fickler's ability
Gynoid (gynecoid) refers to the distribution of body fat chiefly in the region of the hips and
thighs. Merriam-Webster Online Dictionary, s.v. "Gynecoid", http://www.merriamwebster.com/dictionary/gynecoid (last accessed March 15, 2013). Lymphedema is defined as
"[s]welling (especially in subcutaneous tissues) as a result of obstruction of lymphatic
vessels or lymph nodes and the accumulation of large amounts of lymph in the affected
region." Stedman's Medical Dictionary 1040 (27th ed. 2000).
- 10 -
G. Reports of State Agency Medical Consultants, Drs. Jerry Reed and
James J. Bane
In September 2009, a state agency medical consultant, Dr. Jerry Reed,
conducted a physical residual functional capacity assessment of Fickler.
T382. This was a records review; Reed did not actually examine Fickler. He
found that Fickler could frequently lift or carry 10 pounds and that her
ability to push or pull (including the operation of hand or foot controls) was
limited to an occasional basis due to her severe lymphedema.10 T383. Reed
stated that Fickler could stand and/or walk (with normal breaks) for a total of
"at least 2 hours in an 8-hour work day[,] 3-5 hours a day." T383. He found
that she could sit (with normal breaks) for a total of about 6 hours in an 8hour workday; he did not check the box stating that she must periodically
alternate sitting and standing to relieve pain or discomfort. T383. She could
occasionally climb stairs, balance, stoop, and kneel, but could never crouch or
crawl. T384. He found no manipulative limitations in her hands (in other
words, she could reach in all directions, including overhead, and do gross and
fine manipulation with her hands and fingers). T385. He also found that she
retained the ability to perform the full range of "'sedentary'" exertion. T384.
Reed concluded that Fickler's complaints of disabling pain were partially
credible, given the objective medical evidence, and her treatment history and
activity level. T387. Although she complained of significant joint pain, she
underwent minimal treatment and took no strong pain medications.11 T387.
In November 2009, a second state agency medical consultant, Dr.
James J. Bane, reviewed Reed's assessment and summarily stated that he
agreed with Reed's findings. T391. Bane noted that the only change since
Reed's assessment was that Fickler had become pregnant. T391.
H. Medical Records, 2009–10
In November 2009, Fickler filled out a new disability report. She stated
that the pain in her knees, hips, and left wrist had worsened since April
2009, and she was having more trouble sleeping. T201. She also reported
shooting pain in her wrists, her arms and hands falling asleep, and tingling
foot and leg pain. T201. Going up and down stairs hurt her knees "really
The assessment defined "frequently" as occurring one-third to two-thirds of an 8-hour
work day; and "occasionally" as occurring from very little to up to one-third of the day.
Reed also stated, incorrectly, that Fickler was "able to spend a lot of time watching TV."
T387. That finding is contradicted by the record. The only evidence on Fickler's TV habits
came from her, and statements from her friends and family—and these uniformly reveal
that Fickler was either too busy taking care of children to watch TV or did not enjoy
watching it because of headaches. See T161, 167, 183, 187, 191.
- 11 -
bad," and she had pain her back, shoulders, neck, and feet, and lots of
swelling. T201. She had to move up steps one at a time. T203.
Although Fickler claimed that her condition had worsened, her report
does not reveal any ways it affected her differently. In fact, she stated that
her daily activities had not changed since the report in April 2009. T203. Her
conditions did not affect her ability to care for her personal needs except that
the swelling made it hard to wear socks and to get socks and shoes on and off.
T203. And despite her allegedly worsening symptoms, Fickler had not visited
a medical provider, and she was still not taking any medications. T201–03.
Another disability report in January 2010 suggested some changes in
Fickler's symptoms, but no changes to her ability to care for herself or her
daily activities, other than difficulty getting in and out of the shower. T214218. She also reported that she was taking Tylenol. T217.
Fickler met with Dr. Daniel Wik, a chiropractic and medical doctor, in
February 2010. T1244. At that time she was 20 weeks pregnant. T1244. She
reported the same symptoms as previously, and difficulty putting socks and
shoes on; that it was hard to do dishes, laundry, and cleaning, and that she
was tired and weak in her arms with lots of swelling. T1244.
Wik conducted a comprehensive lumbar examination of Fickler, with
mixed results. Various tests were positive for pain at the L5 level. T1244.
However, during muscle strength testing, Fickler had "some amount of
incooperation [sic] and needed to have extra encouragement." T1244. In order
to obtain maximum effort, Wik had to test each muscle individually. T1244.
Touching Fickler's sacroiliac joints for one test revealed much greater pain
than would be expected. T1244. Palpation of the vertebral and paravertebral
structures of her lumbar spine produced extreme pain and muscle spasms,
but Wik also noted that there was "extreme sensitivity to a very minimal
amount of pressure." T1244. Despite this, Fickler was
observed rolling on the examination table from prone to supine
with no signs or symptoms of protective antalgia. Patient bends
forward, backward and in very awkward and precarious positions
taking care of her children who are also present in the
examination room and when performing these types of functions,
she seems to not have any type of antalgic protective
Wik diagnosed Fickler with peripheral neuropathy/carpal tunnel
syndrome, chronic low back and cervical pain, multi-joint pain, and chronic
pain myofacial syndrome with fibromyalgia. T1245. He also noted that
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although Fickler wished to apply for disability, his opinion could not
substantiate a disability claim as there were "too many pieces of information
that are missing." T1245. He prescribed Cymbalta and Meloxicam,12 but
noted that Fickler's OB-GYN might veto the use of such medications as
harmful to Fickler's baby. T1245. And indeed, her OB-GYN did advise
against taking these medications while pregnant. T221, 1257.
On August 9, 2010,13 Fickler reported headaches that had been getting
worse over the last month. T1252. She described headaches lasting all day, of
moderate to severe intensity. T1252. Lying in a dark room and taking extrastrength Tylenol helped. T1252. Later in August, Fickler met with a
podiatrist, Dr. Robert Colligan, regarding pain in her feet. T1257. He noted
multiple warts and prescribed treatment accordingly. He also noted that she
had lymphedema and recommended compression stockings and boots,
massage, and elevation. T1257.
II. Statements by Fickler's Family and Friends
Fickler also submitted statements by her husband, aunt, and two
friends. All were written in either May or June 2009. Her husband's report
described Fickler's daily activities as fairly limited. He stated that the whole
family helped in preparing meals, and they dined out. T161. He did most of
the shopping, but sometimes he would drive Fickler to the store, and their
children would help with the shopping. Fickler generally stayed home and
did not have a lot of hobbies. She did not watch TV much because of
headaches and pain in her eyes. T161. On an average day, Fickler would help
get the two school-aged children ready to catch the bus, and would do some
chores, but usually needed help from her husband or children. T163. She
would often lie down in the bedroom as a result of headaches. T163.
The report from Fickler's aunt, Maralee Hobbs, added little new. She
had known Fickler since 1986 and lived close by. T170, 183. Hobbs said that
Fickler walked as needed to keep up with her two little boys, and some days
it was hard just to do this. T183. According to her, it was hard for Fickler to
Cymbalta (duloxetine hydrochloride) is used to treat, among other things, fibromyalgia.
NSAID. The Merck Manual, Meloxicam, http://www.merckmanuals.com/professional/lexico
mp/meloxicam.html (last accessed March 15, 2013).
Fickler must prove that she was disabled before the expiration of her insured status (her
"date last insured"), which was in June 2010 (T13). See Cox v. Barnhart, 471 F.3d 902, 907
(8th Cir. 2006). Although these medical records were generated after that point, they are
relevant to the extent they reflect Fickler's condition during the period she was eligible for
disability benefits. Id.; see also United States v. Bergmann, 207 F.3d 1065, 1069–70 (8th
- 13 -
keep up with the housework and laundry, and the children did not help
much. T183. Hobbs also said that Fickler was a "full time mom," but that she
was in constant pain and had difficulty keeping up with her housework.
T184–85. But she also attributed this, in part, to the difficulty in balancing
the chores with keeping up with two small children. T185. Hobbs also
reported that Fickler's husband and boys "do not help her much at all." T185.
The other statements, from Fickler's two friends, were generally consistent
with this account, and provided little additional information. T186-194.
III. Hearing Testimony
At the time of the hearing, Fickler was 37 years old and had four
children, ages 15, 11, 5, and 2. T30. She was also 8 months pregnant. T30.
She was approximately 5'4" and weighed 315 pounds; at her first prenatal
visit, she had weighed 300 pounds. T31.
Fickler testified regarding her symptoms; and this generally mirrored
the symptoms discussed above. T31–32. She explained that she had dealt
with these symptoms for years, that they had continued to worsen, and that
they were unrelated to her pregnancies. T32. On a scale of 0 to 10 (0 being no
pain, and 10 excruciating), Fickler described pain on most days of about 8.
T35. She said that the level of pain varied with the activities she tried and
how well she had slept; some days were not bad and some days she hurt so
much she could not do anything. T35. She stated that her fibromyalgia
caused pain throughout her body, especially in her knees, shoulders, elbows,
and legs. T41–42. Fickler briefly mentioned her lymphedema, stating that it
caused swelling. T42.
Fickler acknowledged she had not had undergone any tests to
determine the severity of her carpal tunnel syndrome since 2002. T33. She
said that some days her symptoms were the same as in 2002, and some days
they were worse. T44–45. But when asked, Fickler was unable to provide any
reason to believe that the problem had worsened since then. T33–34. The
ALJ commented that Fickler had refused surgery for her carpal tunnel
syndrome because it was not severe enough. T32. Fickler responded that she
had not declined surgery, rather, her doctors had not recommended it. T32.
Fickler testified that she was limited in her ability to bend, sit, or stand
for "long periods." T34. Later, when asked how long she could sit, she
clarified that she had to frequently alternate between sitting and standing.
T36. The duration depended on how she was doing; sometimes she could sit
for 10 minutes, sometimes for an hour. T36. She stated that being seated at
the hearing was causing her hips to hurt, numbness and tingling down her
legs, and causing her hands to fall asleep. T36. Standing was similar: she
could sometimes stand for 5 or 10 minutes while washing dishes, then she
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would have to sit down. T36. Fickler testified that she was able to walk
throughout her house as she needed, but could not go up and down the stairs
much. T36. She generally did not leave the house, and could not walk "really
long distances." T36.
Fickler estimated that she could lift 15 to 20 pounds on a regular basis;
and stated that her ability to lift depended on the pain she was experiencing
on a given day. T37. Fickler testified she was able to lift her 2-year-old. T33.
She estimated that he weighed between 20 and 25 pounds, and that she had
to lift him 2 to 3 times a day. T45. She could lift him to her waist, but did not
think she could lift him higher without pain. T45.
Fickler testified briefly regarding her daily activities. Because her
husband worked full time, usually during the day, she was the primary
caregiver for the two younger children (with the older children at school).
T43. Fickler stated that her husband did most of the shopping; but that she
could drive herself to appointments or run errands when she needed to,
although she often had to stop and rest. T37.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4).
I. Step One
At the first step, the claimant has the burden to establish that she has
not engaged in substantial gainful activity since her alleged disability onset
date. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); 20 C.F.R. §
404.1520(a)(4)(i). If the claimant has engaged in substantial gainful activity,
the claimant will be found not to be disabled; otherwise, the analysis proceeds
to step two. Gonzales, 465 F.3d at 894; § 404.1520(a)(4)(i).
In this case, the ALJ found that Fickler had not engaged in substantial
gainful activity since her alleged disability onset date, and that finding is not
disputed on appeal. T15.
II. Steps Two and Three
At the second step, the claimant has the burden to prove she has a
"medically determinable physical or mental impairment" or combination of
impairments that is "severe[,]" 20 C.F.R. § 404.1520(a)(4)(ii), in that it
"significantly limits [her] physical or mental ability to perform basic work
activities." Gonzales, 465 F.3d at 894; see also, Kirby v. Astrue, 500 F.3d 705,
707–08 (8th Cir. 2007). Next, "at the third step, [if] the claimant shows that
[her] impairment meets or equals a presumptively disabling impairment
listed in the regulations, the analysis stops and the claimant is automatically
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found disabled and is entitled to benefits." Gonzales, 465 F.3d at 894; §
404.1520(a)(4)(iii). Otherwise, the analysis proceeds.
In this case, at step two, the ALJ found that Fickler had several severe
impairments: fibromyalgia, obesity, low back pain, and carpal tunnel
syndrome (peripheral neuropathy). T15. At step three, however, the ALJ
found that Fickler did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. T15–16.
The ALJ first considered Fickler's obesity. Although obesity does not
correspond to any listed impairment, the ALJ must consider the effects of
obesity, alone and in combination with other medically determinable
impairments, and determine whether it meets or equals a listed impairment.
Social Security Ruling (SSR) 02–1p: Policy Interpretation Ruling: Titles II
And XVI: Evaluation of Obesity (2002). Here, the ALJ found that Fickler's
obesity exacerbated her other impairments, but failed to reach disabling
severity. T16. The ALJ further found that Fickler's fibromyalgia, carpal
tunnel syndrome, and lower back pain failed to reach listing-level severity.
T16. Fickler does not object to any of these findings. She does, however, claim
that the ALJ erred by failing to consider whether her lymphedema met or
equaled one of several listed impairments. This will be discussed in detail
III. Residual Functional Capacity
Before moving to step four, the ALJ must determine the claimant's
residual functional capacity (RFC), which is then used at steps four and five.
20 C.F.R. § 404.1520(a)(4). Residual functional capacity is defined as the
most a claimant can still do, despite the physical and mental limitations that
affect what the claimant can do in a work setting. Gonzales, 465 F.3d at 894
n.3; § 404.1545. To determine a claimant's RFC, the ALJ must consider the
impact of all the claimant's medically determinable impairments, even those
previously found to not be severe, and their related symptoms, including
pain. §§ 404.1529(d)(4) and 404.1545(a)(1) and (2). This requires a review of
"all relevant evidence" in the case record. § 404.1545(a). The ALJ is
responsible for developing the claimant's complete medical history, §
404.1545(a)(3), and bears the primary responsibility for making the RFC
determination. Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011). However,
"the burden of persuasion to prove disability and demonstrate RFC remains
on the claimant." Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012).
A special procedure governs how the ALJ evaluates a claimant's
symptoms. The ALJ first considers whether the claimant suffers from
"medically determinable impairment(s) that could reasonably be expected to
produce [the claimant's] symptoms." 20 C.F.R. § 404.1529(a) to (c)(1). A
- 16 -
medically determinable impairment must be demonstrated by medical signs
or laboratory evidence. § 404.1529(b). If this step is satisfied, the ALJ then
evaluates the intensity and persistence of the claimant's symptoms to
determine how they limit the claimant's ability to work. § 404.1529(c)(1). This
again requires the ALJ to review all available evidence, including statements
by the claimant, "objective medical evidence,"14 and "other evidence."15 §
404.1529(c)(1) to (3).
The ALJ considers the claimant's statements about "the intensity,
persistence, and limiting effects of [her] symptoms," and evaluates them "in
relation to the objective medical evidence and other evidence." 20 C.F.R. §
404.1529(c)(4). Ultimately, symptoms will be determined to diminish the
claimant's capacity for basic work activities, and thus impact the claimant's
RFC, "to the extent that [the claimant's] alleged functional limitations and
restrictions due to symptoms . . . can reasonably be accepted as consistent
with the objective medical evidence and other evidence." Id.; § 404.1529(d)(4).
In assessing the credibility of a claimant's subjective testimony regarding his
or her alleged symptoms, the ALJ must weigh a number of factors. See, Moore
v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009); § 404.1529(c)(3)(i–vii).16 When
deciding how much weight to afford the opinions of treating sources and other
medical opinions regarding a claimant's impairments or symptoms, the ALJ
considers the factors set forth in 20 C.F.R. § 404.1527.
The ALJ found that Fickler had the RFC to perform "light work" as
defined in 20 C.F.R. § 404.1567(b), with the following modifications: Fickler
could lift 20 pounds occasionally and 10 pounds frequently; sit for 6 of 8 hours
and stand and/or walk for 6 of 8 hours with a sit/stand option. T16.
Additionally, she had occasional postural limitations; constant and frequent
use of both hands; and could never climb ladders, ropes, or scaffolds. T16. In
reaching this conclusion, the ALJ found that Fickler's "medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant's statements concerning the intensity,
20 C.F.R. §§ 404.1529(c)(2) and 404.1528(b) and (c).
“Other evidence” includes information provided by the claimant, treating and nontreating sources, and other persons. See 20 C.F.R. § 404.1529(a)(1), and the sections
referred to therein, as well as § 404.1529(c)(3).
In assessing a claimant's credibility, the ALJ should consider the Polaski factors: (1) the
claimant's daily activities; (2) the duration, intensity, and frequency of 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. Moore, 572 F.3d
at 524; see also Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
- 17 -
persistence and limiting effects of these symptoms are not credible to the
extent" they were inconsistent with the ALJ's determination of Fickler's RFC.
The ALJ found several reasons to doubt Fickler's testimony as to the
severity of her symptoms. First, she had not taken any medicine other than
Tylenol for her supposedly debilitating pain. T17. The ALJ acknowledged
that because Fickler had been nursing or pregnant for most of the relevant
time frame, it was not known whether the medicines prescribed by Tietgen or
Wik would have helped. T17. But Tietgen had expressed some hope that they
would help. T17, T528. And although Tietgen had consistently recommended
that Fickler exercise, eat right, and lose weight, as part of the treatment for
fibromyalgia, there is no evidence Fickler even attempted any of these. T17–
18. All of these could have been done without risking harm to her children.
T17. Fickler's weight had remained essentially the same since her alleged
onset date. After the birth of her third child in January 2005, she weighed
approximately 295 pounds; at the hearing, she was 8 months pregnant and
weighed 315 pounds. T18.
The ALJ next found that Fickler's daily activities were inconsistent
with her allegations of disabling pain and fatigue. T18. At least since leaving
work in 2005, she had been the primary caregiver for her third child, and
since 2008, her fourth child. T18. This included taking care of her third
child's special medical needs. T18. The ALJ further found that Fickler may
have been downplaying the extent of her daily activities, and that her reports
were inconsistent with those of third parties. T18. There was also evidence,
the ALJ found, that Fickler had stopped working for reasons not related to
her alleged disability, and exaggerated her symptoms in an effort to receive
benefits and continue to remain at home with her children. T18. And
although Fickler was diagnosed with mild carpal tunnel syndrome in 2002,
she continued working for 3 years even though she later alleged that she had
trouble grasping and often dropped things. T19. Her allegations were also
contradicted by Birch's examination, which showed her upper extremities to
be entirely normal. T19.
The ALJ next discussed the opinions of Tietgen and the consulting
physicians Reed and Bane. T18–19. He noted that Tietgen had managed
Fickler's care sporadically for approximately 5 years, but had had trouble
treating her because she was either pregnant or breastfeeding. T19. The ALJ
then cited the December 2007 letter from Unum to Tietgen, where Tietgen
agreed that Fickler had a "sustainable light work capacity" and could sit,
stand, and walk for 6–8 hours per day. T19. The ALJ found that Tietgen's
- 18 -
opinion was entitled to "some consideration" and supported his RFC
After noting generally that consulting physicians do not examine the
claimant and thus are not entitled to as much weight as treating or
examining physicians, the ALJ found that the opinions of Reed and Bane
were entitled to "some weight" because they were consistent with the record.
T19. And the ALJ specifically noted that Reed found Fickler's complaints to
be disproportionate to what should have been expected, given her medical
history and activity level. T19.
Finally, the ALJ briefly discussed the statements provided by Fickler's
family and friends. T19. The ALJ noted that the statements generally
mirrored Fickler's allegations (which he found to be not credible) but also
exposed some inconsistencies. T19. Ultimately, the ALJ found their
statements did not establish Fickler to be disabled, and that their opinions
were entitled to little weight as they were lay-persons and could not be
considered disinterested. T19.
As discussed in greater detail below, Fickler argues that the ALJ
committed numerous errors in evaluating the opinions of Tietgen and the
consulting physicians, in evaluating her credibility, and in deciding the
weight to assign to the statements of her family and friends.
IV. Steps Four and Five
At step four, the claimant has the burden to prove that she lacks the
RFC to perform her past relevant work. Gonzales, 465 F.3d at 894; 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant can still do her past relevant work, she
will be found to be not disabled, otherwise, the analysis proceeds to step five.
At step five, the burden shifts to the Commissioner to prove, considering the
claimant's RFC, age, education, and work experience, that there are other
jobs in the national economy that the claimant can perform. Gonzales, 465
F.3d at 894; § 404.1520(a)(4)(v).
In this case, at step four, the ALJ found that Fickler was unable to
perform any past relevant work. T20. But the ALJ found, based on the
testimony of the vocational expert, that there were jobs that existed in
significant numbers in the national economy that Fickler could perform. T20–
21. So, the ALJ concluded that Fickler was not under a disability, and denied
her claim for benefits.
It is not clear if, by Tietgen's "opinion," the ALJ was referring collectively to Tietgen's
opinions, or simply to the Unum letter, which was the only functional assessment discussed
- 19 -
STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, but will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the
record, the Court finds it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the ALJ's findings, the
Court must affirm the ALJ's decision. Id. The Court reviews for substance
over form: an arguable deficiency in opinion-writing technique does not
require the Court to set aside an administrative finding when that deficiency
had no bearing on the outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir.
2011). And the Court defers to the ALJ's determinations regarding the
credibility of testimony, so long as they are supported by good reasons and
substantial evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
Where the claimant submits evidence to the Appeals Council that was
not previously submitted to the ALJ, the new evidence becomes part of the
administrative record before the Court. Nelson v. Sullivan, 966 F.2d 363, 366
(8th Cir. 1992). If, as here, the Appeals Council considered the new evidence
but declined to review the ALJ's decision, the Court does not evaluate the
Council's decision to deny review, but determines whether the record as a
whole, including the new evidence, supports the ALJ's determination.
Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000); see also Van Vickle v.
Astrue, 539 F.3d 825, 829 n.2 (8th Cir. 2008). The Court must decide how the
ALJ would have weighed the new evidence had it existed at the initial
hearing. Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000). But the
general rule still applies: even if the new evidence is substantial and supports
a contrary decision, the Court may not reverse the ALJ's decision if it is
supported by substantial evidence. Id.
Fickler argues that the ALJ committed a number of errors in finding
she was not disabled. Many of Fickler's arguments are without merit, but two
errors require remand. Both relate to the ALJ's determination of Fickler's
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I. Whether Fickler's Lymphedema Was a Severe Impairment and
Whether It Met or Equaled a Listed Impairment
Fickler first argues that the ALJ erred in failing to consider whether
her lymphedema was a severe impairment at step two, and then again at
step three in failing to find whether it met or equaled a listed impairment.
But "[d]eciding whether impairments are severe at Step 2 is a threshold issue
only; an ALJ must continue on to the remaining steps of the evaluation
process as long as there exists even one severe impairment." Arnett v. Astrue,
676 F.3d 586, 591 (7th Cir. 2012). Here, the ALJ found that several of
Fickler's impairments were severe, and proceeded on to step three. So, any
error at step two was—standing alone—harmless. See, id.; Carpenter v.
Astrue, 537 F.3d 1264, 1265–66 (10th Cir. 2008). Assuming there was error, it
could only have prejudiced Fickler at step three or in determining her RFC.
The Court has reviewed the record and is not convinced that Fickler met her
burden of showing her lymphedema met a listed impairment. So, any error at
step three was also harmless. But as the Court explains in part II, below, the
ALJ erred in failing to explain whether Fickler's lymphedema impacted her
RFC, and that error was not harmless. Before turning to Fickler's RFC, the
Court will briefly explain why any error at step three was harmless.
There is no error when an ALJ fails to explain why an impairment does
not equal one of the listed impairments as long as the overall conclusion is
supported by the record. Boettcher, 652 F.3d at 863. Here, the ALJ concluded
broadly that none of claimant's impairments, alone or in combination, met or
medically equaled a listed impairment. T15. However, the ALJ's opinion
contains no mention of Fickler's lymphedema, nor the attendant swelling it
caused. Therefore, the Court cannot tell if the ALJ actually considered
Fickler's lymphedema. Fickler argues that this was prejudicial error, because
her lymphedema made it difficult to walk and climb stairs, and because she
may have met or equaled one of several listed impairments.
Social Security regulations detail how ALJs are to evaluate claims of
lymphedema at step three:
Lymphedema does not meet the requirements of 4.11, although it
may medically equal the severity of that listing. We will evaluate
lymphedema by considering whether the underlying cause meets
or medically equals any listing or whether the lymphedema
medically equals a cardiovascular listing, such as 4.11, or a
musculoskeletal listing, such as 1.02A or 1.03. If no listing is met
or medically equaled, we will evaluate any functional limitations
imposed by your lymphedema when we assess your residual
- 21 -
20 C.F.R. Part 404, Subpart P, Appx. 1, § 4.00.G.4. Fickler argues that the
ALJ should have considered whether her lymphedema met or equaled the
listings for §§ 4.11, 1.02A, and 1.03. The Court finds that any error in this
regard was harmless, as the evidence shows Fickler did not meet or equal
any of these listings.
Listing 4.11 is easily dismissed. It requires "[c]hronic venous
insufficiency of a lower extremity with incompetency or obstruction of the
deep venous system" and one of two other conditions.18 20 C.F.R. Part 404,
Subpart P, Appx. 1, § 4.11. The first is "extensive brawny edema" which
Fickler did not have. § 4.11.A.3; 4.00G3 (defining brawny edema). The second
is "[s]uperficial varicosities, stasis dermatitis, and either recurrent ulceration
or persistent ulceration that has not healed following at least 3 months of
prescribed treatment." § 4.11.B (emphasis supplied). There is no record
Fickler suffered from any ulceration. Listing 1.03 is also entirely
inapplicable. It requires reconstructive surgery or surgical arthrodesis, and
Fickler has never had either. § 1.03.
Listing 1.02A is more challenging. Listing 1.02 applies to:
Major dysfunction of a joint(s) (due to any cause): Characterized
by  gross anatomical deformity (e.g., subluxation, contracture,
bony or fibrous ankylosis19, instability) and  chronic joint pain
and stiffness with  signs of limitation of motion or other
abnormal motion of the affected joint(s), and  findings on
appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s).
A. Involvement of one major peripheral weight-bearing
joint (i.e., hip, knee, or ankle), resulting in inability to
ambulate effectively, as defined in 1.00B2b . . . .
Venous insufficiency is "a condition in which the flow of blood through the veins is
impaired." Cleveland Clinic, Diseases and Conditions: Venous Insufficiency, http://my.clevel
andclinic.org/disorders/venous_insufficiency/hic_venous_insufficiency.aspx (last accessed
March 15, 2013). The condition occurs "when forward flow through the veins is obstructed,
as in the case of a blood clot, or if there is backward leakage of blood flow through damaged
Ankylosis refers to the "[s]tiffening or fixation of a joint as the result of a disease process,
with fibrous or bony union across the joint." Stedman's Medical Dictionary 90 (27th ed.
- 22 -
20 C.F.R. Part 404, Subpart P, Appx. 1, § 1.02.
Even if Fickler had some minor limits on her range of motion, and even
if the Court assumes that swelling alone should also be considered a "gross
anatomical deformity," Fickler has not pointed to any, nor has the Court
found, "appropriate medically acceptable imaging of joint space narrowing,
bony destruction, or ankylosis" of her affected joints. Id.
Nor does the record show that Fickler's lymphedema resulted in an
"inability to ambulate effectively." Id. This is defined generally as
an extreme limitation of the ability to walk; i.e., an impairment(s)
that interferes very seriously with the individual's ability to
independently initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient lower
extremity functioning (see 1.00J) to permit independent
ambulation without the use of a hand-held assistive device(s)
that limits the functioning of both upper extremities. . . .
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient
distance to be able to carry out activities of daily living.
They must have the ability to travel without companion
assistance to and from a place of employment or school.
Therefore, examples of ineffective ambulation include, but
are not limited to, the inability to walk without the use of a
walker, two crutches or two canes, the inability to walk a
block at a reasonable pace on rough or uneven surfaces, the
inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few
steps at a reasonable pace with the use of a single hand
rail. The ability to walk independently about one's home
without the use of assistive devices does not, in and of
itself, constitute effective ambulation.
20 C.F.R. Part 404, Subpart P, Appx. 1, § 1.00.B.2.b(1)–(2) (emphasis
Beginning with the general definition, Fickler has never needed to use
a cane or assistive device. And while she had difficulty walking, it did not
unduly interfere with her ability to carry out her activities of daily living. She
could not walk "really long distances." T36. But more is required to find an
inability to ambulate effectively. Fickler was able to drive herself and run
- 23 -
errands as needed, and keep up with her two young children every day. Birch
found that Fickler's lymphedema imposed only difficulty with "agile
movements." T374. Fickler had difficulty with stairs, avoided them when she
could, and had to go up stairs one at a time. T32, 36 203. But there is no
evidence she was unable to "climb a few steps at a reasonable pace with the
use of a single hand rail." 20 C.F.R. Part 404, Subpart P, Appx. 1, §
1.00.B.2.b(2). In short, there is no evidence Fickler was unable to ambulate
effectively. Fickler has not shown that she met any of the above listed
impairments. Nor has she argued that the ALJ should have considered other
listed impairments. Therefore, any error at step three was harmless.
II. Consideration of Lymphedema in Fickler's RFC
But Fickler next argues that the ALJ erred in failing to consider the
impact of her lymphedema on her RFC. As noted above, the ALJ's opinion
contains no mention of Fickler's lymphedema. Nor does the opinion mention
the attendant swelling or fluid retention. Fickler argues that this shows the
ALJ failed to fully and fairly develop the record with regard to the impact of
The ALJ may or may not have satisfied his duty to develop the record—
but the Court cannot tell. Again, the real problem stems from the fact that,
after careful review of the opinion, it is not clear to this Court whether the
ALJ considered the impact of Fickler's lymphedema at all. And unlike any
omissions at steps two and three, the Court cannot say this error was
harmless. To determine a claimant's RFC, the ALJ must consider the impact
of all the claimant's medically determinable impairments, even those
previously found to not be severe, and their related symptoms, including
pain. 20 C.F.R. §§ 404.1529(d)(4) and 404.1545(a)(1) and (2). The ALJ was
obligated to consider Fickler's lymphedema and the swelling it caused.
Although Fickler's lymphedema may not have been "severe" for purposes of
step two, nor met a listed impairment at step three, there is evidence it
caused significant limitations on her ability to work.
The error here was primarily grounded in the ALJ's duty to explain his
decision; there may not necessarily have been a violation of the duty to
develop the record. There is no bright line rule to determine when the
Commissioner has or has not adequately developed the record; rather, such
an assessment is made on a case-by-case basis. Mouser v. Astrue, 545 F.3d
634, 639 (8th Cir. 2008). While the ALJ must fairly and fully develop the
record, the ALJ is not obligated to investigate a claim not presented at the
time of the application for benefits and not offered at the hearing as a basis
for disability. Id. The claimant is in the best position to alert the ALJ to any
impairments, and bears the burden of presenting the strongest case possible.
- 24 -
Id. at 637. On the other hand, Social Security proceedings are inquisitorial
rather than adversarial, and it is the ALJ's duty to investigate the facts and
develop the arguments both for and against granting benefits. Sims v. Apfel,
530 U.S. 103, 110–11 (2000). And at some point, references in the record to a
potentially disabling condition will put the ALJ on notice and trigger the duty
to develop the record, even if the claimant has not raised the issue. Mouser,
545 F.3d at 639.
In some respects, the fact that the ALJ did not discuss Fickler's
lymphedema is not totally unexpected. Fickler did not list lymphedema as a
disabling condition in her initial disability report. See T147. Of course, this
report was filled out 5 months before she was first diagnosed with
lymphedema, so the omission is understandable. T147, 367–75. But at the
hearing, Fickler was well aware of this condition, yet her testimony
concentrated almost entirely on other health conditions. Fickler mentioned
lymphedema once, briefly stating that she experienced a lot of swelling. T41–
42. When the ALJ asked her if she could describe any symptoms other than
pain from fibromyalgia, or anything else that affected her ability to work, she
did not mention the lymphedema or swelling. T42.
In a related line of cases, courts have held that an ALJ's failure to
discuss the claimant's obesity was harmless error where the claimant did not
raise the issue and no doctors imposed additional limitations as a result of
the obesity. See Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003); see
also Forte v. Barnhart, 377 F.3d 892, 896–97 (8th Cir. 2004). A similar
omission was held harmless in Skarbek v. Barnhart, 390 F.3d 500 (7th Cir.
2004). In Skarbek, the record contained sufficient references to the claimant's
obesity to alert the ALJ to the impairment, even though the claimant had not
raised it as an issue. Skarbek, 390 F.3d at 504. But the ALJ's failure to
mention obesity was harmless, because the ALJ adopted the limitations
suggested by doctors who were aware of the claimant's obesity, and the
claimant did not specify how his obesity further impaired his ability to work.
Id.; see also Rutherford v. Barnhart, 399 F.3d 546, 552–53 (3d Cir. 2005)
(adopting Skarbek and reasoning that because the claimant's obesity was
"obvious," her doctors must have been aware of it, and the ALJ's adoption of
those doctors' conclusions constituted "a satisfactory if indirect consideration
of that condition").
But this case differs from Anderson and Skarbek in key aspects. In
Anderson, the ALJ at least noted the claimant's obesity in the decision. 344
F.3d at 814. And in Anderson, the claimant never alleged any limitations
resulting from his obesity. Id. Fickler testified regarding her lymphedema
and the swelling it caused, yet the ALJ's opinion is entirely silent on both.
And unlike Skarbek, there was at least some evidence of additional
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impairments caused by Fickler's lymphedema that the ALJ did not adopt.
The consulting physicians found that Fickler's lymphedema limited her to
occasional pushing or pulling with the upper and lower extremities (including
the operation of hand and/or foot controls); limited her to never crouching or
crawling; and imposed certain environmental limitations, such as avoiding
concentrated exposure to noise, vibration, fumes, odors, dusts, gases, poor
ventilation, and extreme cold; and cautioned her to avoid even moderate
exposure to humidity and extreme heat. T383–86, 391. The ALJ did not adopt
or discuss these impairments.
The Court finds that the references in the record, and Fickler's
testimony, were sufficient to alert the ALJ to the presence of her
lymphedema. The Court cannot determine, however, if the ALJ considered
and rejected additional impairments related to Fickler's lymphedema, or may
have overlooked the matter. The ALJ was required to "minimally articulate
his reasons for crediting or rejecting evidence of disability." Ingram v. Chater,
107 F.3d 598, 601 (8th Cir. 1997). Without some way to tell whether the ALJ
considered Fickler's lymphedema, the Court cannot fulfill its duty to provide
meaningful review. Rogers v. Commissioner of Social Sec., 486 F.3d 234, 248
n.5 (6th Cir. 2007). Therefore, the Court cannot say any error at this stage
was harmless, and this case must be remanded.
III. Evaluating Tietgen's Opinions
Fickler advances three arguments for why the ALJ did not properly
evaluate Tietgen's opinions. The first two are without merit and quickly
disposed of, but Fickler's third argument points to an omission in the ALJ's
opinion that also requires remand. Fickler first argues that the ALJ failed to
mention several of Tietgen's reports in his opinion, and therefore it should be
assumed he failed to consider the reports. Filing 17 at 18–20. Specifically, she
claims the ALJ failed to discuss a report from April 2005, the functional
assessment from May 2006, and the re-evaluation and functional assessment
from October 2007. T277, 285, 526–31. This argument is contradicted by the
ALJ's opinion. The ALJ specifically cited and discussed the April 2005 report
(T17–19, discussing "Exhibit 3F"), and quoted from the May 2006 assessment
(T19 (quoting Exhibit 19F)). The ALJ did not specifically cite to the October
2007 visit and assessment, but he did cite to the Social Security exhibit (19F)
containing the report. While the ALJ is required to fully and fairly develop
the record, he is not required to discuss every piece of evidence submitted.
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010). Nor can the Court
assume that because the ALJ did not cite a specific piece of evidence, he
failed to consider it. Id.
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Fickler next argues that the ALJ failed to explain what weight he gave
to Tietgen's opinions. It is true that the ALJ's explanation was succinct: he
found that Tietgen's opinion was entitled to "some consideration" and cited 20
C.F.R. § 404.1513(d) and SSR 06-03p.20 But the problem with the ALJ's
opinion is not that he gave only a brief explanation of his decision to afford
Tietgen's opinion only some weight. Nor is the phrase "some consideration"
meaningless, as Fickler argues. It tells the Court that the ALJ gave Tietgen's
opinion something less than controlling weight, and that these opinions were
consistent with some, but not all, of the evidence of record. The Court will not
remand because of an "arguable deficiency in opinion-writing" where that
deficiency had no bearing on the outcome. Buckner, 646 F.3d at 559. The
problem with the ALJ's consideration of Tietgen's reports lies elsewhere.
Fickler's final, and meritorious, argument is that the ALJ erred by
relying upon the December 2007 letter from Unum, signed by Tietgen (the
"Unum letter"), as evidence that Fickler had "sustainable light work
capacity" and could occasionally lift 10–20 pounds, frequently push and pull
10 pounds, and sit, stand, and walk for 6–8 hours each day. See T19, 523.
And it is here that the ALJ's terse explanation is more problematic. Fickler
argues that the Unum letter lacked sufficient indicia of reliability to be
credited, and that the ALJ failed to resolve the conflict between this letter
and Tietgen's other opinions, which placed greater restrictions on Fickler's
ability to work.
Leaving aside the question of reliability,21 there is a more substantial
issue with the ALJ's reliance on the Unum letter as substantive evidence of
Fickler's condition or ability to work. The record does not disclose what, if any
basis, underlay Tietgen's supposed opinion, e.g., that Fickler had sustainable
light work capacity and could sit, stand, and walk for 6–8 hours. At most, the
Unum letter established that at one point (April 2007), Tietgen supposedly
agreed with the above assessment, which was the result of a "Functional
Capacity Examination" performed by a "Ms. Jarzynka" on behalf of Unum.
T523. The record does not reveal who Jarzynka was, what her qualifications
were, or how she arrived at her opinion.
As discussed below, § 404.1513(d) and SSR 06-03p detail how ALJs should weigh opinions
from "other sources" such as physician's assistants.
The Social Security Act does not preclude hearsay evidence, and the ALJ's proceedings
are not governed by the Federal Rules of Evidence. McClees v. Sullivan, 879 F.2d 451, 453
& n.2 (8th Cir. 1989). But hearsay evidence must have some indicia of reliability such that
it is "sufficiently convincing to a reasonable mind." Id. at 453. The Court does not reach the
separate question whether the Unum letter met this standard.
- 27 -
Nor is it clear why Tietgen allegedly agreed with Jarzynka's
assessment in April 2007. And assuming that he did, it is far from clear that
much weight should be given to his purported agreement. In April 2007,
Tietgen had not seen Fickler in over a year. And when he was asked in
December 2007 about his purported agreement, Tietgen flatly contradicted
the opinion, stating that there was "no way Fickler had sustainable work
capacity at a light level" and there was "no way she was capable of working."
T523. And unlike Jarzynka's report, the basis for this opinion was in the
record: it was based on Tietgen's October 2007 examination. T285, 523, 526.
The ALJ should not have relied upon the Unum letter, at least not
without seeking further clarification. The ALJ apparently considered each of
Tietgen's opinions, but only relied upon the functional limitations set forth in
the Unum letter. The problem is not that the ALJ may have discredited
Tietgen's other opinions—he is able to do so if warranted by the record.
McCadney v. Astrue, 519 F.3d 764, 767 (8th Cir. 2008). The problem is that it
is unclear whether he did discount Tietgen's other opinions, and if so, why.
Id. Without further evidence regarding the basis of the Unum letter, relying
upon it was error, and if the Unum letter drops out of the equation, the Court
cannot determine whether it is likely the ALJ would have assigned more
weight to Tietgen's other opinions.
This case resembles Vossen v. Astrue, 612 F.3d 1011 (8th Cir. 2010). In
Vossen, the ALJ credited the opinion of a non-examining medical expert over
a consulting physician who had examined the claimant, because the ALJ
questioned the authenticity of the consultant's report. Id. at 1016–17. The
Eighth Circuit held that the ALJ erred in not contacting the examining
physician to clear up any questions of authenticity. Id. As the Vossen court
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. . . . As previously noted, "[t]he opinions of nontreating practitioners who have attempted to evaluate the
claimant without examination do not normally constitute
substantial evidence on the record as a whole." Certainly, there
are circumstances in which relying on a non-treating physician's
opinion is proper. But here, the primary reason for doing so was
the suspected inauthenticity of [the examining physician's]
assessment of [the claimant's] sitting and standing limitations.
This assessment went to the crucial issue of [the claimant's] RFC.
- 28 -
Id. (citations omitted). It was the ALJ's duty, on remand, to determine if the
examining physician's report was authentic, and if so, to weigh that opinion
against the other evidence and reexamine the claimant's RFC as necessary.
Id. at 1016–17.
Here, the ALJ relied on an opinion that lacked any basis in the record.
The ALJ was not obliged to give the Unum letter any weight; but if he chose
to do so, the ALJ needed to determine what, if any, basis there was for the
opinion it contained. As in Vossen, Tietgen's opinions went to the crucial issue
of Fickler's RFC, and in particular, her ability to sit, stand, and walk. This
error is significant, because if the Unum letter is disregarded, there is little
other evidence on this point. And in particular, there is little evidence on
what effect Fickler's fibromyalgia—which the ALJ found was a severe
impairment, and which everyone agreed caused some measure of pain and
fatigue—had on her ability to work.
Only Tietgen and the consulting physicians addressed the effects of
Fickler's fibromyalgia. In 2005, Hurley diagnosed Fickler with fibromyalgia,
but did not detail any specific limitations this imposed on her ability to work.
T269–70. He only opined that she would have difficulty performing her
previous job at Tyson. T270. In 2010, Wik agreed with the diagnosis of
fibromyalgia, but offered no specific limitations. T1244–45. It is not clear if
either doctor was asked to express an opinion on the matter; and in that case,
the absence of such an opinion does not constitute substantial evidence
supporting an ALJ's findings. Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir.
That leaves Birch, who examined Fickler only once. His examination
focused almost exclusively on Fickler's lymphedema and carpal tunnel
syndrome. T367–75. Although he was asked to consider her fibromyalgia, the
only evidence that he did so is a single mention at the beginning of his report,
that Fickler alleged she suffered from the condition. T372. The remainder of
his examination focused on her lymphedema, assessing her range of motion
and the effects of her carpal tunnel syndrome, and performing various tests
for neurological deficits. T373–75.
The Court cannot determine whether Birch considered Fickler's
fibromyalgia at all. His report contains no discussion of fibromyalgia, of
testing for trigger points, or of speaking with her about her symptoms. Little
can be gleaned from the fact that Fickler's range of motion and other
musculoskeletal and neurological examinations were essentially normal.
That is generally the case with fibromyalgia patients. Johnson v. Astrue, 597
F.3d 409, 410 (1st Cir. 2009) (citing Dennis L. Kasper, et al., Harrison's
Principles of Internal Medicine 2056 (16th ed. 2005)). But the failure to
address Fickler's subjective complaints is troubling, because these are "'an
- 29 -
essential diagnostic tool'" in cases of fibromyalgia. Id. at 412 (quoting GreenYounger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003)).
So, the only medical evidence that actually addressed the limitations
imposed by Fickler's fibromyalgia consisted of Tietgen's reports, especially
those from May 2006 and October 2007, and the opinions of the consulting
physicians. As the Court discusses below, the opinions of the consulting
physicians generally supported the RFC arrived at by the ALJ. But Tietgen,
who actually examined Fickler and was the only person to have examined her
on multiple occasions, stated that Fickler could only perform 2–3 hours of
"sedentary" activity each day (which involved, among other things, walking
and standing "on occasion") and 1–2 hours of "light activity" each day (which
required standing 6–8 hours a day). T526, 528. This is significantly less than
the ALJ's finding that Fickler could stand and walk for 6–8 hours each day,
even when factoring in the ALJ's sit/stand option. It is not entirely clear how
long Tietgen believed Fickler could sit each day, but the limit of 2–3 hours of
sedentary activity suggests that he also believed she would not be capable of
sitting for 6 hours, as found by the ALJ.
If the ALJ had credited Tietgen's assessments, it may have led to the
conclusion that Fickler was disabled. The ALJ found that Fickler had the
capacity to do "light work," with several modifications. Light work is defined
as requiring, among other things, "a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling of
arm or leg controls." 20 C.F.R. § 404.1567(b). "Sedentary work," in turn,
involves sitting, with only occasional walking and standing. § 404.1567(a). If
Tietgen's assessments were correct, Fickler would have had difficulty doing
either sedentary or light work for a full 8-hour day.
While the ALJ considers all relevant evidence in formulating the
claimant's RFC, Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005), the
determination is in part a medical question, so the ALJ's assessment "must
be supported by some medical evidence of the claimant's ability to function in
the workplace." Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (emphasis
supplied). The medical evidence concerning Fickler's fibromyalgia was quite
limited, and so omission of Tietgen's reports stands out. In cases of
fibromyalgia, "where a claimant's RFC depends in large part on the
functional implications of his or her subjective symptoms, a treating
physician's 'on-the-spot examination and observation of [the] claimant'" is
important. Johnson, 597 F.3d at 413. While Tietgen was a physician's
assistant, rather than a physician, his training, experience, and actual
examinations of Fickler provided key evidence that should have been
- 30 -
The Court acknowledges that Fickler bore the burden to prove
disability and demonstrate her RFC. Perks v. Astrue, 687 F.3d 1086, 1092
(8th Cir. 2012). While she produced a voluminous set of medical records,
many were not particularly helpful. But it was the ALJ's duty to develop the
record and ultimately make the RFC determination. Martise v. Astrue, 641
F.3d 909, 923 (8th Cir. 2011). The ALJ may, or may not, have considered and
disregarded Tietgen's other reports. But as already noted, the problem is not
that the ALJ may, or may not, have disregarded Tietgen's other reports, the
problem is the Court cannot tell if he did, or if so, why.
The ALJ has the duty, in the first instance, to weigh the evidence and
resolve conflicts among the opinions of various medical sources. Renstrom v.
Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012); Masterson v. Barnhart, 363 F.3d
731, 736 (8th Cir. 2004). And "it is not for the court to assign weight to
evidence that was not properly considered by the ALJ." O'Connor v.
Barnhart, 2004 WL 2192730, *4 (N.D. Iowa 2004). Doing so would invade the
ALJ's statutorily appointed role as the fact-finder. Id. at *5–7. After making
the appropriate findings of facts, the ALJ must also "minimally articulate his
reasons for crediting or rejecting evidence of disability." Ingram, 107 F.3d at
601. Stated another way, the ALJ must build a "logical bridge between the
evidence and [his] conclusion." Scott v. Astrue, 647 F.3d 734, 740 (7th Cir.
2011). Here, some pieces of the bridge are missing.
In light of the record before it, the Court cannot say that the error was
harmless, i.e., that the ALJ would inevitably have reached the same result if
he had properly considered all of Tietgen's reports. Dewey v. Astrue, 509 F.3d
447 (8th Cir. 2007); cf. Ford v. Astrue, 518 F.3d 979, 982–83 (8th Cir. 2008)
(even where ALJ's credibility finding was supported by substantial evidence,
remand was required because the court could not say whether the ALJ
"would necessarily have disbelieved [the claimant] absent the erroneous
inferences that he drew from the record").
The Court's decision is not altered by the fact that Tietgen was a
physician's assistant, and therefore not what Social Security regulations refer
to as an "acceptable medical source." Social Security regulations distinguish
between "acceptable medical sources," and "other sources" which include
medical and non-medical sources. Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir.
2007); 20 C.F.R. § 404.1502. Acceptable medical sources include, among other
things, licensed physicians and licensed or certified psychologists. Sloan, 499
F.3d at 888; § 404.1513(a). As to "other sources," medical sources include,
inter alia, physician assistants and nurse practitioners, and non-medical
sources include welfare agency personnel, friends, neighbors, and family.
Sloan, 499 F.3d at 888; § 404.1513(d).
- 31 -
While "other sources" cannot establish the existence of a medically
determinable impairment, they may "'provide insight into the severity of the
impairment(s) and how it affects the individual's ability to function.'" Id.
(quoting SSR 06-03p). In SSR 06-03p, the Social Security Administration
acknowledged that other sources were playing an increasing role in treating
and evaluating claimants. Id. Opinions from these sources are "important
and should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file." Id.
These opinions should be evaluated using the same factors used to evaluate
opinions from acceptable medical sources, set forth in 20 C.F.R. §
404.1527(d). SSR 06-03p. But while these factors are useful, they are not
binding on the ALJ, who has greater discretion in dealing with opinions from
"other sources." Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006); cf.
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
That said, in some cases, after weighing the appropriate factors,
an opinion from a medical source who is not an "acceptable
medical source" may outweigh the opinion of an "acceptable
medical source," including the medical opinion of a treating
source. For example, it may be appropriate to give more weight to
the opinion of a medical source who is not an "acceptable medical
source" if he or she has seen the individual more often than the
treating source and has provided better supporting evidence and
a better explanation for his or her opinion.
SSR 06-03p (emphasis supplied).
Tietgen was the only medical professional who saw Fickler for her
fibromyalgia on more than one occasion, and was in the best position to
evaluate its effects on Fickler. SSR 06-03p does not itself require any
particular level of explanation by an ALJ, and there "is a distinction between
what an adjudicator must consider and what the adjudicator must explain in
the disability determination or decision." SSR 06-03p (emphasis supplied).
However, the ALJ "generally should explain the weight given to opinions
from these 'other sources.'" Id. And as discussed above, the ALJ has an
overarching duty to build a logical bridge between the evidence and his
findings. Cf., Richardson v. Astrue, 858 F. Supp. 2d 1162 (D. Colo. 2012) (ALJ
erred in failing to properly weigh opinion of nurse practitioner using factors
set forth in SSR 06-03p); Hernandez v. Astrue, 814 F. Supp. 2d 168, 183
(E.D.N.Y. 2011) (although ALJ may properly afford no weight to opinion of
"other source," the ALJ must explain that decision).
- 32 -
The ALJ should have either disregarded the Unum letter or conducted
further investigation to discover the basis for the opinion it contained. If the
Unum letter had been disregarded, the ALJ may have assessed the opinions
of Tietgen, Reed, and Bane differently. As it was, it is not clear that the RFC
fully encapsulated all limitations imposed by Fickler's conditions, including
her fibromyalgia and lymphedema. That may, in turn, have affected the
ALJ's evaluation of Fickler's credibility. In sum, considering the Unum letter
without ascertaining the basis for the opinions it contained was prejudicial
error requiring remand.
IV. The ALJ's Duty to Obtain Additional Medical Evidence
Fickler next argues that the ALJ did not fulfill his duty to fully and
fairly develop the record, because he failed to ensure "that the record
include[d] evidence from a treating physician, or at least an examining
physician, addressing the particular impairments at issue." Filing 17 at 21.
Fickler's brief does not specify which impairment she is referring to. The
most likely candidates are fibromyalgia and lymphedema. But there was
evidence from Birch and the consultants regarding Fickler's lymphedema.
T374–75, 383–86, 391. So, the Court understands Fickler to be arguing that
it was the ALJ's obligation to ensure the record contained an opinion from a
treating or examining physician regarding any limitations imposed by her
fibromyalgia. As discussed above, the only evidence on this subject was
provided by Tietgen and the non-examining consultants.
The ALJ's duty to develop the record "may include seeking clarification
from treating physicians if a crucial issue is undeveloped or underdeveloped."
Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006). Generally, the opinions
of doctors who have not examined the claimant do not constitute substantial
evidence on the record as a whole. Nevland v. Apfel, 204 F.3d 853, 858 (8th
Cir. 2000). This is especially true when the opinion of the non-examining
doctor conflicts with the evaluation of a treating physician. Wagner v. Astrue,
499 F.3d 842, 849 (8th Cir. 2007).
However, substantial evidence will support an ALJ's determination
where the ALJ does not rely solely on the opinions of non-examining
physicians, but also conducts an independent review of the medical evidence,
as well as other evidence in the record, such as a lack of treatment and the
claimant's activities of daily living. Krogmeier v. Barnhart, 294 F.3d 1019,
1023–24 (8th Cir. 2002); cf. Vossen, 612 F.3d at 1016. Here, it is possible that
the ALJ might have been able to properly determine Fickler's RFC without
additional medical evidence.
Because this case is being remanded, it would be premature to decide
whether the ALJ would be required to seek out additional medical evidence,
- 33 -
should the Commissioner determine that further proceedings are necessary.
The Court cannot determine whether the evidence in support of any
conclusion is sufficient without first knowing the conclusion. See Goff v.
Barnhart, 421 F.3d 785, 791 (8th Cir. 2005). If, however, the ALJ finds
during any further proceedings that there is not sufficient evidence of how
fibromyalgia affects Fickler's ability to work, he may address the matter by,
for example, ordering a consultative examination that actually addresses her
fibromyalgia. See, Lauer v. Apfel, 245 F.3d 700, 706 (8th Cir. 2001); 20 C.F.R.
V. Explaining the Decision Not to Credit the Opinions of the State
Agency Medical Consultants
Fickler next argues that the ALJ erred in failing to explain the weight
he gave to the opinions of Drs. Reed and Bane, the non-examining physicians
who provided physical RFC assessments in 2009. See T382–391. The ALJ
gave these opinions "some weight," noting that neither physician examined
Fickler, but that their opinions were consistent with his own RFC assessment
and the record as a whole. T19. Fickler claims that the failure to further
explain the weight given to these opinions was error, because Reed and Bane
both found that Fickler could only stand and walk for 2 hours out of an 8hour work day, while the ALJ found Fickler could stand and walk for 6 hours,
with a sit/stand option.
However, Fickler has misconstrued the findings of Reed and Bane.
Reed did find (and Bane reaffirmed) that Fickler could stand and walk for at
least 2 hours each day; but further found that she could also stand and walk
for up to 3 to 5 hours each day. See T383, 391. And that assessment is not
inconsistent with the ALJ's determination of Fickler's RFC. The ALJ found
that Fickler could stand and walk for 6 hours, with a sit/stand option. Reed
and Bane, on the other hand, did not check the box stating that Fickler "must
periodically alternate sitting and standing to relieve pain or discomfort." See
T383. The ALJ found that Fickler could do slightly more than Reed or Bane
found, but only with an additional accommodation. A claimant's RFC
measures the most a claimant can still do in a work setting. Gonzales, 465
F.3d at 894 n.3 (quoting 20 C.F.R. §§ 404.1545 and 416.945). The ALJ could
have explained this aspect of his decision more thoroughly, but Fickler has
not shown that this has prejudiced her.
VI. Evaluation of Fickler's Credibility
Fickler also argues that the ALJ failed to properly apply the factors to
be considered in evaluating her credibility. Filing 18 at 8. As noted above, in
assessing a claimant's credibility, the ALJ should consider: (1) the claimant's
- 34 -
daily activities; (2) the duration, intensity, and frequency of 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. Moore, 572 F.3d at 524. Not every factor will apply in
every case, and the ALJ need not explicitly discuss each one. Id. It is
sufficient if he acknowledges and considers the factors before discounting the
claimant's subjective complaints.
The credibility of a claimant's subjective testimony is primarily for the
ALJ to decide. Vossen, 612 F.3d at 1017. The ALJ's credibility determination
must be upheld if the ALJ provides good reasons for discounting the
claimant's subjective complaints—i.e., inconsistencies in the record, or the
Polaski factors—and those reasons are supported by substantial evidence.
Gonzales, 465 F.3d at 895–96. Here, the ALJ found that Fickler's complaints
of disabling symptoms were not entirely credible, and supported his
determination with cogent reasons that were supported by substantial
evidence. Accordingly, his determination should be upheld.
Fickler argues that the ALJ failed to properly consider the effects of her
obesity. That was not the case. The ALJ found that Fickler's obesity
exacerbated her other impairments, and considered it throughout his
analysis. T16–18. Primarily, the ALJ focused on Fickler's failure to follow
Tietgen's advice. T17–19. On numerous occasions, Tietgen recommended that
Fickler exercise, lose weight, and eat right. T273–77. He told her that this
was part of the treatment for fibromyalgia. T276. But the record contains no
evidence that Fickler attempted to follow this advice. Failing to follow a
recommended course of treatment weighs against a claimant's credibility.
Wagner, 499 F.3d at 851.
Fickler quotes Stone v. Harris, 657 F.2d 210, 212 (8th Cir. 1981), for
the proposition that "[t]he notion that all fat people are self-indulgent souls
who eat more than anyone ought appears to be no more than the baseless
prejudice of the intolerant svelte." And she argues, weight loss is difficult
even for the "iron-willed" and further complicated by the fact that exercise
was difficult due to pain. Filing 17 at 26. While the Court has no
disagreement with these generalities, Fickler has not demonstrated their
specific application to her case. The ALJ's analysis reveals no prejudice, but
instead shows a careful consideration of Fickler's condition, as well as the
fact that she had generally failed to follow Tietgen's advice.
The Court has considered Fickler’s other arguments with respect to the
ALJ’s credibility determination and finds each of the arguments to be without
merit. The ALJ’s credibility determination was supported by fair reasoning
and substantial evidence. But should the Commissioner decide that further
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proceedings are warranted after remand, the ALJ is free to revisit some of
the credibility determinations, if merited, based on the reasons for remand in
VII. Evaluation of the Third-Party Statements
Finally, Fickler argues that the ALJ failed to properly evaluate the
statements from her friends and family. However, these statements generally
were cumulative to Fickler's own testimony. They confirmed that she had
limited daily activities, and that she dealt with pain and fatigue. There were
some minor inconsistencies between Fickler's reports of her daily activities
and those provided by the third parties, which the ALJ may have taken out of
context. But that aside, Fickler has not shown that the ALJ improperly
considered or weighed the opinions. This last argument is without merit.
The Court finds that, while many of Fickler's asserted errors are
without merit, two require remand. For the reasons stated, this is not a case
where the medical evidence "overwhelmingly supports a finding of disability,"
so remand (rather than awarding benefits) is the appropriate remedy. PateFires v. Astrue, 564 F.3d 935, 947 (8th Cir. 2009). Accordingly,
IT IS ORDERED:
This case is reversed and remanded to the Commissioner
for further proceedings consistent with this opinion; and
A separate judgment will be entered.
Dated this 15th day of March, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge
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