Hanneman v. Astrue
Filing
19
OPINION AND ORDER VACATING AND REMANDING THE COMMISSIONER'S DECISION. Signed by U. S. District Judge Roberto A. Lange on 5/17/12. (DJP)
FILED
MAY 11 2012
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DORI L. HANNEMAN,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CIV 11-4113-RAL
OPINION AND ORDER
VACATING AND
REMANDING THE
COMMISSIONER'S DECISION
Plaintiff Dori Hanneman seeks reversal of the Commissioner of Social Security's
decision denying Hanneman's application for Social Security Disability Insurance ("SSDI")
benefits. Alternatively, Hanneman requests that this Court remand the case for a further hearing
on various issues she has raised. I For the reasons explained below, this Court reverses the final
decision of the Commissioner and remands to the Social Security Administration for further
consideration of Hanneman's application consistent with this Opinion and Order.
I. Procedural Background
This case involves Hanneman's second filing for SSDI benefits. Hanneman filed a prior
application for SSDI benefits on March 29, 2001, alleging a disability onset date of September
9, 1998. AR2 13; Doc. 18-1 at 4. Administrative Law Judge ("AU") Robert Maxwell held a
hearing and issued a decision on July 21, 2003, finding that Hanneman was not disabled from
September 9, 1998 through the date of that decision. AR 13; Doc. 18-1.
1 Hanneman entitled her appeal a "Motion for Summary Judgment." Under the Standing
Order of this Court filed on December 5, 2000, summary judgment is not the means for disposition
of Social Security appeals in this district. Rather, once a plaintiff files a complaint and the defendant
files an answer in a Social Security matter, the court enters an order setting a briefing schedule and
thereafter makes a determination concerning the Commissioner's decision. This Court entered such
a briefing schedule, Doc. 6, and Hanneman's appeal is ripe for decision by this Court.
2
Citations to the appeal record will be cited as "AR" followed by the page or page numbers.
On September 8, 2008, Hanneman filed the instant application for SSDlbenefits, alleging
that she was disabled since December 28, 1999, due to breast cancer, fibromyalgia, thoracic
outlet syndrome, reflex dystrophy, brachial plexus neuritis, Raynaud's syndrome, acid reflux,
hyperemia and cellulitis in the right chest, intractable pain with numbness ofthe chest, arms, and
hands, idiopathic thrombocytopenia purpura, anxiety attacks, irritable bowel, disc impingement,
bulging disks, degenerative disc disease, arthritis, a left sprained ankle, skin cancer, and
acromioclavicular joint arthritis. AR 61 ; 63; 122; 148. The Commissioner denied Hanneman's
claim initially on December 5,2008, and again upon reconsideration on January 14,2009. AR
63; 70-71. Hanneman requested an administrative hearing on January 27, 2009. AR 72-76.
Hanneman received a hearing before ALJ Maxwell on May 18,2010. AR 13; 23-60.
Finding no reason to reconsider his previous determination that Hanneman was not disabled
during the time period of September 9, 1998 to July 21, 2003, the AU applied the doctrine of
res judicata to the portion ofHanneman's claim seeking SSDI benefits from December 28, 1999
through July 21, 2003. Because Hanneman last met the insured status requirement ofthe Social
Security Act on June 30, 2004, the AU determined that the time period relevant to Hanneman's
claim for disability ran from July 21,2003 to the date last insured. 3 AR 13. The ALJ issued a
"Notice of Decision-Unfavorable" on June 23, 2010. AR 10-12. Hanneman appealed the
AU's decision to the Appeals Council and submitted additional evidence including medical
records and a medical source statement dating from October 26, 1998 to August 23, 2002. AR
1-4; 116; 840-74. The Appeals Council considered this evidence but denied Hanneman's request
3 "An applicant must be insured for disability insurance benefits to be eligible for [Social
Security Disability Insurance] benefits." Shaw v. Chater, 221 F.3d 126, 131 (2nd Cir. 2000). An
applicant's insured status is determined based on whether the applicant has acquired sufficient quarters
of coverage.
2
for review on July 26, 2011. Hanneman then timely filed her Complaint in this case on August
16,2011. Doc. 1.
II. Factual Background
Hanneman was born on December 15, 1957. AR 29; 122. She graduated from high
school in 1976, and completed a certified nursing assistant program in the early eighties. AR
30;158-159. Hanneman currently lives in Madison, South Dakota with her husband. AR 29.
Dr. James Eckhoff, M.D. is Hanneman's treating rheumatologist. Hanneman began
seeing Dr. Eckhoff regularly in October of 1998, when Dr. Eckhoffs impression was that
Hanneman suffered from fibromyalgia and impingement syndrome in her left shoulder. AR 871
873. Dr. Eckhoff treated Hanneman's impingement syndrome with a corticosteroid shot. AR
873.
Hanneman had a follow-up visit with Dr. Eckhoff in January of 1999, during which she
complained of persistent pain in her left shoulder. AR 870. Dr. Eckhoff noted "definite
fibromyalgia which continues to fluctuate in symptoms" and continued impingement syndrome
in Hanneman's left shoulder. AR 870. Hanneman met with Dr. Walker Wynkoop, M.D., an
associate of Dr. Eckhoff, that same month. Dr. Wynkoop's impressions from this appointment
were shoulder subacromial impingement and rotator cuff tendinitis. AR 840. Hanneman saw
Carol Larsen, Dr. Eckhoffs physician's assistant ("P.A."), on March 2,1999. AR 867-868. P.A.
Larsen's exam of Hanneman revealed fibromyalgia tender points and positive subacromial
impingement in the left shoulder. AR 867.
Hanneman was diagnosed with breast cancer in November of 1999, and did not see Dr.
Eckhoff again until September 8, 2000. AR 865. During this appointment, Dr. Eckhoff
remarked that Hanneman's fibromyalgia symptoms were moderately well controlled and noted
impingement syndrome in Hanneman's left shoulder. AR 865-66. Hanneman saw Dr. Eckhoff
3
again in March of 2001. AR 859. Dr. Eckhoff noted that Hanneman's fibromyalgia was
"symptomatic" in that it affected Hanneman's sleep and caused her diffuse muscle pain. AR 859.
Dr. Eckhoff also listed impingement syndrome in Hanneman's left shoulder as a problem. Id.
Hanneman saw Dr. Eckhoffagain in Octoberof2001. AR857-58. Dr. Eckhoffassessed
Hanneman as having fibromyalgia and impingement syndrome in her right shoulder. Dr.
Eckhoff further remarked that a June 2001 MRI showed "bilateral shoulder joint changes" that
suggested a "degenerative process," and that a July 2,2001 MRI of Hanneman's cervical spine
showed straightening of the cervical lordosis related to muscle spasms and mild spondylotic
degenerative disc changes ofC5-6. AR 857. In an October 25, 2001 note, Dr. Eckhoffrestricted
Hanneman to lifting no more than twenty pounds and opined that Hanneman could not sit or
stand in one position for longer than fifteen minutes. AR 856.
At Dr. Eckhoffs suggestion, Hanneman saw Dr. Kathryn Florio, a neurologist, on
November 6, 2001. AR 844. Hanneman complained of pain in her neck and shoulder and of
numbness and tingling in her arms and legs. AR 843. Hanneman had a positive Tinel's sign at
the leftwrist. 4 AR 844. Dr. Florio's neurological exam revealed a mild abnormality ofsensation
with some evidence of a hysterical component. Id. Hanneman reported to Dr. Florio again on
January 9, 2002 to undergo electrodiagnostic testing for weakness in her lower extremities. AR
842. The electrodiagnostic test showed "very minimal" abnormalities that were suggestive of
bilateral S I nerve root dysfunction, but was otherwise normal. Id. Dr. Florio found no
neurological explanation for Hanneman's symptoms and referred her back to Dr. Eckhoff for
continued care. AR 842.
The Tinel's test and Phalen's maneuver are both commonly used to detect carpal tunnel
syndrome.
See WebMD.com, Carpal Tunnel Syndrome, http:www.webmc.com/pain
management/carpa-tunnel/carpal-tunnel-syndrome?page=2 (last visited May 10,2012).
4
4
The next time Hanneman saw Dr. Eckhoff was in March of 2002. AR 853-54. Dr.
Eckhoffs impressions were that Hanneman had "definite fibromyalgia" and impingement
syndrome in herright shoulder, but that these symptoms improved when Hanneman used Vioxx.
Dr. Eckhoff stated that Hanneman would probably not be able to return to the "vigorous" work
she did as a nursing assistant. AR 854. As part ofher treatment, Dr. Eckhoffrecommended that
Hanneman resume exercising as soon as the weather permitted. Id.
In a follow-up visit with Dr. Eckhoff on July 19,2002, Hanneman complained ofsevere
chest pain up to the right arm and into the right neck, and ofpain at the base ofthe right thumb
which became aggravated when she used her hand with a forceful grip or in a repetitive activity.
AR 850. Dr. Eckhoff examined Hanneman for carpal tunnel syndromeS and found that she had
a positive Tinel's test and Phalen's maneuver on the right and a positive Tinel's test and equivocal
Phalen's maneuver on the left. Hanneman also had a positive Adson's maneuver, a test for
thoracic
outlet
syndrome. 6
See
Mayo
Clinic,
Thoracic
Outlet
Syndrome,
http://www.mayoclinic.comlhealthlthoracic-outlet-syndromeIDS008001DSECTION=tests-and·
diagnosis (last visited May 10, 2012). During the July 19, 2002 appointment, Hanneman asked
Dr. Eckhoffhow she should proceed with a disability application. AR 852. Dr. Eckhoff's notes
explain that "I have indicated to her that I don't consider fibromyalgia to be a disabling condition,
"Carpal tunnel syndrome occurs when the median nerve becomes pinched due to swelling
of the nerve or tendons or both. The median nerve provides sensation to the palm side of the thumb,
index, middle fingers, as well as the inside half of the ring finger and muscle power to the thumb.
When this nerve becomes pinched, numbness, tingling, and sometimes pain ofthe affected fingers and
hand may occur and radiate into the forearm." WebMD.com, http://www.webmd.com/pain
management/carpal-tunnellcarpal-tunnel-syndrome (last visited May 10, 2012).
5
6 "Thoracic outlet syndrome is a group ofdisorders that occur when the blood vessels or nerves
in the thoracic outlet-the space between (the] collarbone and [the] first rib-become compressed.
This can cause pain in [the] shoulders and neck and numbness in [the] fingers." Mayo Clinic, Thoracic
Outlet Syndrome, http://www.mayoclinic.com/health/thoracic-outlet-syndromelD S00800 (last visited
May 10, 2012).
5
but she does have problems with thoracic outlet, she does have evidence of carpal tunnel
syndrome, and 1st CMC joint disease causing pain and discomfort with the use of her thumb.
I think that she should be restricted from repetitive heavy work. Moreover with the thumb the
way it is, she can't be using her hands for forceful grip or other activities of a repetitive nature."
AR 852. Dr. Eckhoff made a number of recommendations in regard to treatment, including a
column thumb splint and a visit to Dr. Florio for a nerve conduction velocity test to evaluate
Hanneman for carpel tunnel syndrome. AR 852. The nerve conduction velocity test took place
on August 2, 2002, and showed mild median nerve entrapment at the right wrist with no
evidence of median nerve entrapment at the left wrist. AR 841.
On August 23, 2002, Hanneman returned to Dr. Eckhoff and requested that he fill out a
residual functional capacity assessment for her Social Security Disability application. AR 519.
In his notes from this appointment, Dr. Eckhoff states:
The [residual functional capacity assessment fonn] asks about the
diagnosis ofimpainnent. This has not been done. She does have mild
carpal tunnel syndrome on the right and impingement syndrome on the
right shoulder. The carpal tunnel syndrome is expected to be
intennittently symptomatic and to be improved with the use of wrist
splinting and decreased repetitive activities with that hand. Shoulder
symptoms will fluctuate depending on how much stress and strain she
puts upon the shoulder with reaching overhead.
AR 520. Dr. Eckhoff's notes go on to explain that Hanneman has certain postural limitations,
should alternate between sitting and standing to relieve discomfort, may stand less than two
hours in an eight-hour workday, can occasionally lift twenty pounds, and can frequently lift less
than ten pounds. AR 520. In support of these limitations, Dr. Eckhoffpointed to Hanneman's
statements that inactivity and prolonged activity aggravated her muscular pain, and that
crouching or squatting for long periods of time causes numbness in her legs. AR 520; 847. Dr.
Eckhoff further stated that he again told Hanneman that he did not consider fibromyalgia to be
6
a disabling disease, and noted that "[Hanneman] has not been able to do the things that need to
be done." AR 520. Dr. Eckhoff told Hanneman that if they were not making any progress on
her symptoms, Hanneman should consider seeing a psychologist to detennine whether there was
some psychological overlay that was contributing to Hanneman's symptoms. Id. Dr. Eckhoff
also suggested the possibility ofenrolling in a chronic pain program and encouraged Hanneman
to exercise more regularly. AR 520. Although the residual functional capacity assessment fonn
that Dr. Eckhoff completed during the August 23, 2002 appointment was not part of the
administrative record at the time of Hanneman's hearing, Hanneman submitted the fonn when
she appealed her case to the Appeals Council. AR 845-48; 876. The limitations Dr. Eckhoff
listed in the fonn were substantially the same as those he listed in his treatment notes from that
day.
Hanneman next saw Dr. Eckhoff on January 15, 2003, when Dr. Eckhoff again identified
fibromyalgia tender points on Hanneman. AR 515-16. Dr. Eckhoffs impressions from this
appointment were that Hanneman suffered from persistent fibromyalgia and intennittent
depression. AR 516. Dr. Eckhoff prescribed to Hanneman the antidepressant Wellbutrin. Id.
Hanneman returned to Dr. Eckhoff on April 23, 2003.
AR 514.
Dr. Eckhoffs
examination of Hanneman revealed fibromyalgia tender points. Id. Hanneman's chest wall
examination showed "marked tenderness on the ribs and moderate tenderness between them over
the left 9th through the 12th ribs adjacent to the spine." Id. Dr. Eckhoffs notes state that
Hanneman "is going to see Dr. Hoversten I believe regarding the chest wall pain. Ifthis workup
is negative, we should probable [sic] proceed to chest or lung CT, an MRI or a bone scan in that
order. Presently I do not know what is causing the pain or discomfort. It is certainly not due to
fibromyalgia." AR 514.
7
Hanneman saw Dr. Eckhoff again on August 26,2003. AR 511. Under the "impression"
section ofhis notes detailing this appointment, Dr. Eckhoff stated "carpel tunnel symptoms right
greater than left, definite fibromyalgia with tender points and trigger points reproducing carpal
tunnel symptoms as well, strong suspicion ofseasonal affective disorder." AR 511. Dr. Eckhoff
strongly recommended that Hanneman engage in regular exercise, ordered a trial of seasonal
affective disorder lights, and scheduled Hanneman for a recheck in six months. AR 511.
At a checkup on March 16,2004, Hanneman again had fibromyalgia tender points. AR
507. Dr. Eckhoff's impressions included fibromyalgia with symptoms that fluctuate and possible
seasonal affective disorder. AR 507.
Dr. Eckhoff continued Hanneman on her current
medications and recommended a follow-up appointment in one year. AR 507. Hanneman
followed Dr. Eckhoff's recommendation and saw him again on March 22, 2005, when she
complained of having severe pain in her lower back and right upper extremity. AR 503.
Hanneman had gone to the emergency room on February 22,2005, for these same problems. AR
409-413; 503. Although her back pain had improved by March 22, 2005, Hanneman reported
ongoing arm pain. AR 503. Dr. Eckhoff's examination of Hanneman's hands showed "fixed
hypesthesia7 at the right hand in the median nerve distribution that has negative Tinet's signs on
both sides and a negative Phalen's maneuver on the left." AR 504. Dr. Eckhoff also noted that
"Hudson's maneuvers are positive on the right side which is possibly raising the issue ofbrachia1
plexus neuritis. ,,8 Dr. Eckhoff referred Hanneman to Dr. Florio for an evaluation of possible
brachial plexus neuritis. AR 504. Hanneman met with Dr. Florio on March 29, 2005. AR 685.
7 Stedman's Medical Dictionary defines hypesthesia as "diminished sensitivity to stimulation."
Stedman's Medical Dictionary 929 (28th ed. 2006).
8 Brachial Plexus Neuritis, or Parsonage-Turner syndrome, is a condition "characterized by
inflamation of the network of nerves that control and supply the muscles of the chest, shoulders, and
arms." WebMd.com, http://children.webmd.com/parsonage-turner-syndrome (last visited May 10,
2012).
8
Hanneman comp lained ofright hand and arm numbness with weakness and burning dysesthesias.
rd. Dr. Florio performed an electrodiagnostic test which demonstrated a mild median nerve
entrapment at the right wrist and a mild to severe axonal degeneration in multiple muscles in the
right arm. AR 686.
On April 16, 2005, Dr. Patrick Kelly performed a right anterior scalenectomy, or thoracic
outlet decompression, on Hanneman due to numbness and tingling in her hand and "significant
arteriovenous compromise." AR 255-56. By November 10,2005, Hanneman was described as
doing fine from "the perspective of thoracic outlet decompression." AR 271. Hanneman
reported that she still had a significant amount of pain in her right arm and chest and numbness
in her left fingers, however. AR 272.
On July 28, 2005, Hanneman saw Dr. Florio for upper extremity numbness and
weakness. AR 666. In a letter to Dr. Kelly discussing Hanneman's appointment, Dr. Florio
explained that when she saw Hanneman initially in November of200 I, Dr. Florio could not find
any explanation for Hanneman's upper extremity numbness and weakness. Dr. Florio noted,
however, that a March 2005 MRI of Hanneman's cervical spine showed a herniated disk at C5
C6, and a smaller herniated disc at C6-C7. rd. These abnormalities were not present in
Hanneman's 200 I MRI. rd. Dr. Florio noted that Hanneman said she was having symptoms in
both of her arms and reported severe shock-like pain in her right arm, as well as swelling, and
color and temperature changes of the arm. AR 666. In Dr. Florio's opinion, the right arm had
"the flavor of RSD... 9 AR 666. In regard to the left arm, Dr. Florio planned to review
Hanneman's cervical MRI and to give Hanneman a left upper-extremity EMG. AR 667.
Hanneman saw Dr. Florio again on September 6, 2005. Dr. Florio concluded that Hanneman's
"RSD," or reflex sympathetic dystrophy, is a rare disorder ofthe sympathetic nervous system
that is characterized by chronic, sever pain. " W ebMD .com, Reflex Sympathetic Dystrophy Syndrome,
http://www .webmd/brain/reflex-sympathetic-dystrophy-syndrome (last visited April 14, 2012).
9
'II
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enlarged herniated disk at C5-C6 was causing Hanneman's symptoms in her left upper extremity,
and that Hanneman's right upper-extremity symptoms were the result ofRSD. AR 665. To treat
the RSD, Dr. Florio recommended physical therapy, increased Hanneman's Neurotonin dosage,
and prescribed Pamelor to help Hanneman's RSD-related anxiety and depression. Id. Dr. Florio
felt that the herniated disk would likely require surgery, but that Hanneman was not "capable
physically or emotionally" of undergoing surgery at that time. Id.
Hanneman continued to see Dr. Eckhoff for fibromyalgia, impingement syndrome, and
other issues through the time of the hearing in 2010. AR 481-500; 713-15. On May 14,2010,
Dr. Eckhoff completed a second form concerning Hanneman's limitations. AR 837-39. Dr.
Eckhoff found that Hanneman could occasionally lift ten pounds and frequently lift less than ten
pounds. AR 837. Dr. Eckhoff concluded that Hanneman could stand and/or walk for less than
two hours in an eight-hour workday and that Hanneman would have to alternate between sitting
and standing to relieve her discomfort. Id. Dr. Eckhoff further noted that Hanneman was to
avoid repetitious use ofher upper and lower extremities and that this limited her ability to push
and/or pull. Dr. Eckhoff also identified several other restrictions, including Hanneman's inability
to assume certain postural positions and her limitations when reaching, handling, and fingering.
AR 838-39. The questionnaire included in the administrative record did not ask Dr. Eckhoffto
specify during what time period Hanneman had any ofthe above-noted limitations. Nor did Dr.
Eckhoff do so.
AR 837-839.
In addition to the questionnaire from Dr. Eckhoff, the
administrative record contains a September 5, 2008 letter from Dr. Michael Keppen, Hanneman's
treating oncologist, that discusses Hanneman's limitations. AR 536. Dr. Keppen stated that
10
Hanneman has not been able to work since 1999 and has fibromyalgia, RSD of the right upper
extremity, and a herniated disk in the cervical spine C5 and C6 with radiculopathy. Id.
10
Hanneman's hearing before the ALl occurred on May 18,2010, in Sioux Falls. AR 23.
Present at the hearing were Hanneman and her attorney, Renee Christensen, as well as Richard
Ostrander, a vocational expert summoned to the hearing by the ALl. AR 25. 11
Hanneman testified that she started seeing Dr. Eckhoff for her fibromyalgia after she
began having troubles at work AR 35. Hanneman said her fibromyalgia comes and goes and
described it "as a migratory disease because it'll effect you all of a sudden in one area and then
you get ceased up and then it'll quit for a while and then it'll start up. You never know where it's
going to ..." AR 36. Hanneman testified that she stopped working in 1999 after she was
diagnosed with breast cancer and had a mastectomy with ensuing complications. AR 33; 55.
Hanneman had trouble using her right arm after the mastectomy and believed that the surgeon
had "cut through a lot oftissue and nerves and whatnot." AR 34-35; 52. Hanneman testified that
since the surgery she has had "pinpricks going through my hands all the time" and numbness in
her chest wall cavity. AR 46. Hanneman listed her medications as Neurotonin for her RSD and
fibromyalgia, Alprazolam for anxiety, Triamterene -HCT for fluids, Prevacid for reflux, Flexeril
Dr. Keppen began treating Hanneman in March of 2008, after Dr. Loren Tschetter,
Hanneman's treating oncologist from 2000 to 2007, retired. AR 544; 547-48. Dr. Keppen's treatment
notes contain references to Hanneman's chronic pain, RSD, and fibromyalgia. AR 539; 541; 544. The
treatment notes from Dr. Tschetter's cancer-screening examinations contain similar references,
including statements regarding Hanneman's fibromyalgia during and around the time period for which
she is now seeking benefits. AR 571; 569; 567; 565; 562.
10
II At the beginning ofthe hearing, the AU made clear what the relevant time period was-July
21, 2003, the date of his prior ruling, to June 30, 2004. AR 28. Both the ALl and Hanneman's
attorney attempted to keep Hanneman focused on discussing her symptoms and limitations as they
related to this time period, but Hanneman struggled to do so. AR 38; 39; 41-42; 45-46.
11
for muscle relaxation, Remifemin for hot flashes, and Ibuprofen for pain. AR 39. Hanneman
believed that she was taking all of these medications in June of 2004. Id.
When asked about her limitations in June of 2004, Hanneman explained that her
fibromyalgia made it difficult to stay in one position for very long. AR 41. Hanneman estimated
that she could sit for between two and four hours and stand for a "couple hours." AR 41-44.
Hanneman said that she walks on a flat treadmill at 2.8 miles an hour for ten minutes at a time
and that, depending on how she feels, she repeats this activity up to three times a day. AR 44.
Hanneman testified that she could probably lift, carry, pull, and push ten pounds. AR 45.
Hanneman's testimony also indicated that she had at least some difficulty reaching overhead
during the time period relevant to her disability claim. AR 46. When asked by the AU whether
Dr. Eckhoff ever limited her activities prior to June of 2004, Hanneman said that Dr. Eckhoff
told her to avoid kneeling, crouching, climbing ladders, bending over, and standing too long.
When the AU again asked Hanneman when Dr. Eckhoff had imposed these limitations,
Hanneman said "Well, I'm, I can't remember the dates but I, he has told me that these things will
irritate it." AR 57.
At one point during the hearing, Hanneman stated "they've been telling me now that both
ofmy hips got to be replaced because the arthritis [is] so bad." AR 37. During later questioning
by the AU, Hanneman persisted in this statement and said that doctors from the Orthopedic
Institute had told her this. AR 57-58. The AU noted that the medical records showed that
Hanneman only had mild osteoarthritis in her hips and expressed confusion over how this
condition would require a hip replacement. AR 58. The AU's questions prompted the following
exchange:
Hanneman: Well, that, sir, what he told me, he said in time if they get
worse ..."
AU: All right, in time ifyou get, ifyou get worse you might need a hip
replacement.
12
Hanneman: Correct.
AU: So if you, if you stated earlier that you've been told you need a
total hip replacement that would be wrong at this point would it not?
Hanneman: Well, what I meant was that in time I ..."
AU: All right.
Hanneman: I'm correcting myself.
AR 58-59. Because neither the AU nor Hanneman's attorney had questions for him, the
vocational expert did not testify. AR 59.
III. The Disability Determination and the Five-Step Procedure
To determine whether Plaintiff was disabled, the AU applied the five-step sequential
evaluation process mandated under 20 C.F.R. § 404. 1520(a)(4). Under this five-step analysis,
an AU is required to examine:
(l) whether the claimant is currently engaged in a "substantial gainful
activity;"
(2) whether the claimant has a severe impairment-one that significantly
limits the claimant's physical or mental ability to perform basic work
activities;
(3) whether the claimant has an impairment that meets or equals a
presumptively disabling impairment contained in the listing ofimpairments
(if so, the claimant is disabled without regard to age, education, and work
experience);
(4) whether the claimant has the residual functional capacity to perform his
or her past relevant work; and
(5) if the claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cif. 1998). If the AU can make a conclusive
disability determination before step five, the applicable regulation requires the AU to make that
determination and not proceed to the next step. 20 C.F.R. § 404.1 520(a)(4). If the AU cannot
make such a determination before step five, the AU must evaluate each step. Id. Between steps
three and four, the AU assesses the claimant's residual functional capacity ("RFC"). Id.
At step one, the AU found that Hanneman had not engaged in substantial gainful activity
during the relevant time period of July 21, 2003 to June 30, 2004. AR 16-17. At step two, the
13
AU found that Hanneman's history of breast cancer and fibromyalgia were medically
determinable impairments, but that these impairments were not "severe" within the meaning of
the applicable regulations. AR 17. Because the ALl found that Hanneman did not have any
severe impairments, he ended the sequential evaluation at step two. AR 17; 22.
IV. Standard of Review
When considering an ALl's denial of Social Security benefits, a district court must
determine whether the AU's decision "complies with the relevant legal requirements and is
supported by substantial evidence as a whole." Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008». Where, as in the present case,
the Appeals Council considers new evidence but denies review, a district court "must determine
whether the ALl's decision was supported by substantial evidence on the record as a whole,
including the new evidence.Il'2 Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007).
12 The newly submitted evidence in this case consists of the following: I) Medical records
from Dr. Florio, Hanneman's treating neurologist, dating from November 6,2001 to August 2, 2002
(AR 841-844); 2) a medical record from Central Plains Clinic-Orthopedics dated January 26, 1999
(AR 840); 3) a medical source statement from Hanneman's treating rheumatologist, Dr. Eckhoff, dated
August 23, 2002 (AR 845-48); and 4) medical records from Dr. Eckhoff from October 26, 1998 to
August 23,2002 (AR 849-874). In his February 3,2011 brief to the Appeals Council, Hanneman's
attorney listed these four exhibits as attachments to his brief. AR 116. In its July 26, 2011 order
denying review of Hanneman's case, the Appeals Council stated "In looking at your case, we
considered the reasons you disagree with the decision in the material listed on the enclosed Order of
Appeals Council. We found that this information does not provide a basis for Changing the
Administrative Law Judge's decision." AR 1-2. The Order of Appeals Council accompanying the
Appeals Council's decision only listed Hanneman's attorney's brief as additional evidence which the
appeals council was making part of the record, however. AR 4. The Order did not list any of the
above-noted exhibits. Id. In Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000), the Eighth
Circuit Court of Appeals explained the effect of new evidence submitted to the Appeals Council for
a reviewing court:
The regulations provide that the Appeals Council must evaluate the
entire record, including any new and material evidence that relates to
the period before the date of the ALJ's decision. See Nelson v.
Sullivan, 966 F .2d 363, 366 (8th Cir. 1992). If the Appeals Council
finds that the ALJ's actions, findings, or conclusions are contrary to the
weight of the evidence, including the new evidence, it will review the
14
"Substantial evidence on the record as a whole" entails "a more scrutinizing analysis" than
"substantial evidence," which is merely such relevant evidence that a "reasonable mind might
accept as adequate to support a conclusion." Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998)
(noting that "it is not sufficient for the district court to simply say there exists substantial
evidence supporting the Commissioner. ") (internal quotation omitted). "The findings of the
Commissioner as to any fact, if supported by substantial evidence, shall be conclusive ...." 42
V.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 Commissioner's conclusion. II! Pate-Fires,
564 F.3d at 942 (quoting Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)). "Substantial
evidence means more than a mere scintilla. Slusser v. Astrue, 557 F.3d 923,925 (8th Cir. 2009)
II
{citing Neal v. Barnhart, 405 F.3d 685,688 (8th Cir. 2005». A district court must "consider both
evidence that supports and evidence that detracts from the Commissioner's decision." PateFires, 564 F.3d at 942 (citations omitted). Additionally, "[a]s long as substantial evidence in the
record supports the Commissioner's decision, [the court] may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, or because [the
case. See 20 C.F.R. § 404.970(b). Here the Appeals Council denied
review, finding that the new evidence was either not material or did not
detract from the ALJ's conclusion. In these circumstances, we do not
evaluate the Appeals Council's decision to deny review, but rather we
determine whether the record as a whole, including the new evidence,
supports the ALJ's determination.
see also Riley v. Shalala, 18 F .3d 619, 622 (8th Cir. 1994) ("Once it is clear that the Appeals Council
has considered newly submitted evidence, we do not evaluate the Appeals Council's decision to deny
review. Instead, our role is limited to deciding whether the administrative law judge's determination
is supported by substantial evidence on the record as a whole, including the new evidence submitted
after the determination was made. !f); Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992) ("If the
Appeals Council does not consider the new evidence, a reviewing court may remand the case to the
Appeals Council if the evidence is new and material. If, as here, the Appeals Council considers the
new evidence but declines to review the case, we review the ALl's decision and determine whether
there is substantial evidence in the administrative record, which now includes the new evidence, to
support the ALJ's decision. !f).
15
court] would have decided the case differently." McKinneyv. Apfel, 228 F.3d 860, 863 (8th CiT.
2000) (internal citations omitted).
The Court also reviews the Commissioner's decision to determine if appropriate legal
standards were applied. See Roberson v. Astrue, 481 F.3d 1020, 1022 (8th Cir. 2007). The
district court reviews de novo the ALl's ruling for any legal errors. Brueggemann v. Barnhart,
348 F.3d 689,692 (8th Cir. 2003).
v.
Discussion
Hanneman argues that the AU's decision is not supported by substantial evidence on the
record as a whole and free of legal error. She raises one main issue and four sub-issues on
appeal:
1. Whether the Commissioner erred in concluding that Hanneman did
not have a "severe" impairment and ending the sequential evaluation at
Step Two;
a. Whether the Commissioner erred when he failed to determine that
Hanneman's fibromyalgia was severe;
b. Whether the Commissioner erred when he failed to identify
Hanneman's medically determinable impairments of impingement
syndrome and carpal tunnel and determine their severity;
c. Whether the Commissioner improperly evaluated the medical
evidence from the treating physicians;
d. Whether the Commissioner erred by failing to properly evaluate
Hanneman's subjective complaints of pain and other symptoms.
Doc. 11 at 1. At the outset of considering these issues, it is necessary to address the issue ofres
judicata. Hanneman contends that the AU's application of res judicata to the portion of her
claim predating July 21,2003, was done without providing her proper notice and a meaningful
opportunity to address the issue, without support of substantial evidence, and was a violation of
her due process rights. Doc. 1. The Commissioner asserts that the AU's finding concerning the
time period relevant to this case was proper, that Hanneman's arguments on appeal rely primarily
16
on evidence from outside the relevant time period, and that evidence from before July 21,2003,
cannot serve as a basis to reopen Hanneman's prior disability claim. Doc. 17 at 10-11.
The United States Court of Appeals for the Eighth Circuit has explained that "[r]es
judicata bars subsequent applications for [SSDI benefits] based on the same facts and issues the
Commissioner previously found to be insufficient to prove the claimant was disabled. If res
judicata applies, the medical evidence from the initial proceeding cannot be subsequently
reevaluated." Hillier v. Soc. Sec. Admin., 486 F.3d 359, 364-365 (8th CiL 2007) (internal
citations and quotations omitted). In the present case, however, Hanneman does not attempt to
reopen the ALJ's July 21,2003 decision. Doc. 18 at 2.13 Instead, Hanneman is claiming that the
medical evidence considered in the July 21, 2003 decision establishes that she had multiple
severe impairments during the time period relevant to this case. Medical evidence that predates
a claimant's alleged onset ofdisability date is not categorically irrelevant to a finding ofa severe
impairment. See Groves v. Apfel, 148 F.3d 809, 810-11 (7th CiL 1998) ("There thus is no
absolute bar to the admission in the second proceeding of evidence that had been introduced in
the prior proceeding yet had not persuaded the agency to award benefits. The 'readmission' of
that evidence is barred only if a finding entitled to collateral estoppel effect establishes that the
evidence provides no support for the current claim. "); Smith v. Astrue, No. 09-CV -3065, 2011
WL 1230327, at *3 n.8 (N.D. Iowa Mar. 30, 2011); see also Cox v. Barnhart, 471 F.3d 902,907
(8th Cir. 2006) (liEvidence from outside the insured period can be used in 'helping to elucidate
a medical condition during the time for which benefits might be rewarded."') (quoting Pyland
v. Apfel, 149 F.3d 873, 877 (8th CiL 1998»).
13 Specifically, Hanneman's briefstates "Dori did not argue that the prior decision be reopened,
but rather that the evidence from the prior decision shows she had multiple severe impairments, at least
as of 7/21103, the day prior to the relevant period in this case." Doc. 18 at 2.
17
Here, the discrepancy between the AU's July 21, 2003 decision and his June 23, 2010
decision makes the evidence predating the AU's first decision particularly relevant. In his July
21, 2003 decision, the AU found that the combination of Hanneman's impairments were
"severe" within the meaning of the Social Security Act. Doc. 18-1 at 6. In his June 23, 2010
decision, however, the AU found that as of July 22,2003, and continuing on through June 30,
2004, Hanneman did not suffer from any severe impairment. AR 17. It is therefore appropriate
to consider the medical evidence predating the July 21, 2003 decision in an attempt to reconcile
the discrepancy in the AU's two decisions. 14
A. Severe Impairments
Hanneman argues that the AU erred in failing to find that her fibromyalgia was a severe
impairment and in failing to identify her impairments of impingement syndrome and carpal
tunnel syndrome and determine their severity. At step two ofthe sequential evaluation process,
it is Hanneman's burden to establish that her impairments or combination of impairments are
severe. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). "Severity is not an onerous
requirement for the claimant to meet, but it is also not a toothless requirement[.]" Id. An
impairment is "severe" ifit "significantly limits [an individual's] physical or mental ability to do
basic work activities." 20 C.F.R. 404.1520(c). Basic work activities means "the abilities and
14 The administrative record also contains plenty of medical evidence that postdates the time
period relevant to this case. Such evidence may be used to "'elucidate a medical condition during the
time for which benefits might be rewarded.
Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.
2006)(quoting Pyland v. Apfel, 149 F.3d 873, 877 (8th Cir. 1998». The relevance of evidence
postdating the time period for which benefits are sought has its limits, however. See Davidson v.
Astrue, 501 F .3d 987, 989 (8th Cir. 2007) ("'When an individual is no longer insured for Title II
disability purposes, we will only consider her medical condition as of the date she was last insured."')
(internal marks omitted) (quoting Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997)); Brown v.
Barnhart, 390 F.3d 535, 540 (8th Cir. 2004) (claimant's diagnosis of coronary artery disease one year
after her insured status expired had "no bearing" in her case).
III
18
aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). These abilities and aptitudes
include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; capacities for seeing, hearing, and speaking; understanding, carrying out
and remembering simple instructions; using judgment; responding appropriately to supervision,
co-workers, and usual work situations; and dealing with changes in a routine work setting. 20
C.F.R. §§ 404.1 521(b)(1 )-(6).
"An impairment is not severe if it amounts only to a slight abnormality that would not
significantly limit the claimant's physical or mental ability to do basic work activities." Kirby,
500 F.3d at 707. "The sequential evaluation process may be terminated at step two only when
the claimant's impairment or combination of impairments would have no more than a minimal
impact on her ability to work." Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting
Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001 )). Social Security Ruling 85-28
cautions:
Great care should be exercised in applying the not severe impairment
concept. If an adjudicator is unable to determine clearly the effect of
an impairment or combination ofimpairments on the individual's ability
to do basic work activities, the sequential evaluation process should not
end with the not severe evaluation step. Rather, it should be continued.
In such a circumstance, if the impairment does not meet or equal the
severity level of the relevant medical listing, sequential evaluation
requires that the adjudicator evaluate the individual's ability to do past
work, or to do other work based on the consideration of age, education,
and prior work experience.
1985 WL 56856, at *4 (1985); see also Gilbert v. Apfel, 175 F.3d 602, 605 (8th Cir. 1999)
(referring to Social Security ruling 85-28 as a "cautious standard.").
19
In his June 23, 2010 decision, the AU did not include carpal tunnel syndrome or
impingement syndrome inhis listing ofHanneman's medically determinable impairments. 15 The
medical evidence before the AU at the time of the May 18, 2010 hearing explicitly discussed
Hanneman's carpal tunnel syndrome and impingement syndrome. In his notes from an August
23, 2002 appointment, Dr. Eckhoff stated that Hanneman has "mild carpal tunnel syndrome on
the right and impingement syndrome on the right shoulder. The carpal tunnel syndrome is
expected to be intermittently symptomatic and to be improved with the use of wrist splinting and
decreased repetitive activities with that hand. Shoulder symptoms will fluctuate depending upon
how much stress and strain she puts upon the shoulder with reaching overhead." AR 520. Dr.
Eckhoffs examination of Hanneman on August 26, 2003, showed positive carpal tunnel
maneuvers on the right and equivocal on the left. AR 511. In addition, Hanneman's medical
records postdating the August of 2002 appointment with Dr. Eckhoff show that Hanneman's
impingement syndrome was an ongoing problem through June 30,2004, the date Hanneman last
met the insured status requirement. AR 511; 515; 514; 507.
The Commissioner, relying on Raneyv. Barnhart, 396 F.3d 1007, 1011 (8th Cir. 2005),
argues that the AU did not err by failing to identify Hanneman's carpal tunnel and impingement
syndromes as medically determinable impairments. Doc. 17 at 14. At issue in Raney, however,
was whether the AU, after having found that the claimant suffered from severe medical
impairments, failed to consider the claimant's impairments in combination. 396 F.3d at 1011.
In Raney, unlike here, the AU listed all of the claimant's impairments. Id. Although ALJs are
not required to discuss every piece of evidence in the record, see Weberv. Apfel, 164 F.3d431,
A medically determinable impairment is one that "results from anatomical, physiological,
or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques." 42 U .S.C. § 423(d)(3).
15
20
432 (8th Cir. 1999), ALls must "articulate, at some minimum level, [their] analysis of the
evidence ... [and] provide some glimpse into [their] reasoning." Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). Here, the ALJ failed to do so with respect to the evidence of carpal
tunnel and impingement syndromes.
In his July 21,2003 decision, the ALl found that Hanneman had severe impairments in
combination consisting of fibromyalgia, asymptomatic impingement syndrome of the right
shoulder, Raynaud's syndrome, early carpal tunnel syndrome on the right, and chest wall or rib
pain. Doc. 18-1 at 6. But the ALl's June 23, 2010 decision did not include carpal tunnel
syndrome or impingement syndrome in his listing of Hanneman's medically determinable
impairments. The ALl's June 23, 2010 decision contains only one brief reference to carpal
tunnel syndrome and no mention at all of impingement syndrome. AR 13-22. The ALJ failed
to explain any rationale for having found Hanneman to have severe impairments in the July 21,
2003 decision, but not to have severe impairments as of July 22, 2003. There may be some
explanation for the apparent inconsistency, but the ALl provided no such explanation and the
record does not of itself reveal a ready rationale.
Hanneman's medical records from 1998 to 2002-the majority ofwhich were not before
the ALl at the time of the May 18, 2010 hearing--document Hanneman's issues with
impingement syndrome and carpal tunnel syndrome. During late 1998 and early 1999, Dr.
Eckhoff diagnosed Hanneman as having impingement syndrome in her left shoulder, and Dr.
Wynkoop and P.A. Larson found that Hanneman had subacromial impingement in her left
shoulder. AR 873; 840; 867. Additional medical records from October of 1998 to 2001 list
impingement syndrome of the left shoulder as being among Hanneman's problems. AR 870;
859; 863. In the Fall of200 1, Dr. Eckhoff assessed Hanneman as having impingement syndrome
21
of the right shoulder as well and noted bilateral shoulder joint changes that suggested a
degenerative process. AR 857. In July of 2002, Dr. Eckhoff noted impingement syndrome in
Hanneman's right shoulder and her problems with thoracic outlet syndrome. AR 850-852. A
residual functional capacity assessment Dr. Eckhoff filled out on August 23, 2002, lists
impingement syndrome in the right shoulder as one of Hanneman's impairments. AR 845.
Hanneman's issues with carpal tunnel syndrome are similarly well documented. Dr.
Florio's November 6, 2001 examination of Hanneman revealed a positive Tinet's test in
Hanneman's left wrist. AR 844. On July 19,2002, Dr. Eckhoff examined Hanneman for carpel
tunnel syndrome and found that she had a positive Tinet's test and Phalen's maneuver on the right
and a positive Tinet's sign and equivocal Phalen's maneuver on the left.
AR 851.
Electrodiagnostic testing on August 2, 2002, showed that Hanneman had mild median nerve
entrapment at the right wrist. AR 841. Dr. Eckhoffs residual functional capacity of Hanneman
from August 23,2002, lists mild carpal tunnel syndrome in the right wrist as one ofHanneman's
impairments and states that Hanneman's carpal tunnel syndrome symptoms will fluctuate
depending upon use and activity. AR 845.
Although the AU considered Hanneman's fibromyalgia, there is nothing in the ALJ's
June 23, 2010 decision to support that Hanneman's impingement syndrome and carpal tunnel
syndrome had improved to such an extent that they could be disregarded. Nor do Hanneman's
medical records pertaining to July 21, 2003 to June 30, 2004 appear to support such a finding.
This Court cannot tell whether the ALJ believed that her impingement and carpal tunnel
syndromes had improved or mistakenly overlooked those issues in the second filing for SSDI
benefits. Contrary to the Commissioner's assertion, the AU's statement that he gave "careful
consideration" to the "entire record" does not, under the circumstances of this case, suffice to
22
excuse the ALJ's failure to discuss Hanneman's impingement syndrome and carpal tunnel
syndrome, and to explain the inconsistency between his July 21, 2003 and June 23, 2010
decisions. See Salazar v. Barnhart, 468 F.3d 615, 622 (lOth Cir. 2006) (finding that the ALJ's
failure to consider claimant's borderline personality disorder documented in the record required
a remand, even though the AU stated in his decision that he considered "all of the evidence in
the record."); Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) ("While a deficiency in
opinion-writing is not a sufficient reason to set aside an ALJ's finding where the deficiency has
no practical effect on the outcome ofthe case, inaccuracies, incomplete analyses, and unresolved
conflicts of evidence can serve as a basis for remand.") (internal marks and citations omitted).
The circumstances in this case preclude a finding that the ALJ's errors at Step Two are
harmless.
When the AU in 2003 considered Hanneman's carpal tunnel syndrome and
impingement syndrome in combination with her fibromyalgia, chest wall or rib pain, and
Raynaud's syndrome, he found that these impairments were severe in combination. Doc. 18-1 at
6. When the AU did not consider Hanneman's impingement syndrome or carpal tunnel syndrome,
however, he found that she did not suffer from a severe impairment, either singly or in
combination. Accordingly, this Court cannot say that the AU "would inevitably have reached the
same result" had he not erred at Step Two. Dewey v. Astrue, 509 F .3d 447,449-50 (8th Cir. 2007)
(rejecting Commissioner's argument that ALJ's error was harmless where court could not say that,
absent the AU's error, the AU would have "incvitably reached the samc rcsult. ").
Because the ALJ failed to provide an adequate explanation of Hanneman's impairments
and to explain the discrepancy between his two opinions, his opinion is not supported by
23
substantial evidence on the record as a whole. This Court remands the case to the All for
further consideration consistent with this Opinion and Order. 16
B. ALJ's Evaluation of Opinions From Treating Physicians and Hanneman's Subjective
Complaints of Pain and Other Symptoms
Because this Court has determined that Hanneman's case must be remanded for a
revaluation of the severity of her claimed impairments, this Court need not discuss many of
Hanneman's remaining claims. Nevertheless, some additional discussion is warranted on
Hanneman's contention that the ALl erred in his evaluation ofher treating physicians' opinions
and her subjective complaints of pain and other symptoms.
When a treating physician's opinion is "well supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
in the record," an All generally gives the opinion controlling weight. Teague v. Astrue, 638
F.3d 611, 615 (8th Cir. 2011) (quoting 20 C.F.R. § 404.1 527(d)(2)). However, a treating
physician's opinion "does not automatically control, since the record must be evaluated as a
whole." Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) (citation and internal marks
omitted). "An ALl may discount or even disregard the opinion of a treating physician where
other medical assessments are supported by better or more thorough medical evidence, or where
a treating physician renders inconsistent opinions that undermine the credibility of such
opinions." Perkins v. Astrue, 648 F.3d 892, 897-98 (8th Cir. 2011) (citation omitted). "Whether
the ALl grants a treating physician's opinion substantial or little weight, the regulations provide
16 Hanneman argues that her fibromyalgia is a severe impairment by itself. On remand, the
AU will consider all of the evidence and will determine whether Hanneman's impairments constitute
a severe impairment either singly or in combination. While it is certainly questionable whether
Hanneman's fibromyalgia, standing alone, was a severe impairment during the relevant time period,
the circumstances of this case make it appropriate for the AU to make this determination on remand.
24
that the ALl must 'always give good reasons' for the particular weight given to a treating
physician's evaluation." Prosch, 201 F.3d at 1013 (quoting 20 C.F.R. § 404. 1527(d)(2». When
the ALJ does not give the treating physician's opinion controlling weight, the opinion is weighed
considering the factors set forth in 20C.F.R. § 404.1 527(d)(2)-(6). See Shontos v. Barnhart, 328
F.3d 418, 426 (8th Cir. 2003). The factors under 20 C.F.R. § 404.1 527(d)(2)-(6) include 1) the
examining relationship; 2) the treatment relationship, including length of treatment, frequency
of examination, and the nature and extent of the treatment relationship; 3) supportability; 4)
consistency; 5) specialization; and 6) any other factors brought to the ALl's attention tending to
support or contradict the opinion.
In his June 23, 2010 decision, the ALl did not give "controlling weight or great weight"
to Dr. Eckhoffs opinions. AR 21. The ALJ gave several reasons for assigning Dr. Eckhoffs
opinions little weight, two of which warrant discussion. First, the ALJ noted that when filling
out the May 14,2010 questionnaire, Dr. Eckhoff did "not purport to relate back to the claimant's
date last insured." AR 21. On remand, it would be proper for the ALl to determine what time
period Dr. Eckhoffwas referring to when he completed the limitations questionnaire in May of
2010. 17 Second, the ALl pointed to Dr. Eckhoffsnotes from an April 23, 2003 appointment that
said Hanneman "is going to be seeing Dr. Hoversten I believe regarding the chest wall pain. If
this workup is negative, we should probable [sic] proceed to a chest or lung CT, an MRI or a
bone scan in that order. Presently I do not know what is causing the pain or discomfort. It is
certainly not due to fibromyalgia." AR 514. The ALJ may have misinterpreted Dr. Eckhoffs
statement to mean that Hanneman's fibromyalgia was not causing her any pain or discomfort at
17 The administrative record on remand will contain the residual functional capacity assessment
Dr. Eckhoff completed on August 23,2002. This was not part of the administrative record at the time
Hanneman's hearing.
25
all. AR 18; 21. Dr. Eckhoffs notes from April 23, 2003, reflect that Dr. Eckhoff did not know
what was causing Hanneman's chest wall pain, and noted in his records of his examination of
Hanneman "fibromyalgia tender points remain present over the trapezia, pectoralis majors,
proximal forearms, [and] pes anserine bursa." AR 514.18
In his decision, the chief reason the ALJ gave for finding not credible Hanneman's
statements concerning the intensity, persistence, and limiting effects of her symptoms was that
Hanneman's statements were inconsistent with the ALJ's finding that Hanneman had no severe
impairment or combination of impairments that were severe. AR 18. Because the ALJ will be
taking a second look at his Step Two evaluation and may change his earlier finding that
Hanneman does not suffer from a severe impairment, it makes little sense to delve into the AU's
credibility determination at this time.
VI. Conclusion
For the foregoing reasons, it is hereby
18 In his notes from the August 23, 2002 appointment with Hanneman, Dr. Eckhoff states "Her
form is reviewed with her and it is filled out. The questionnaire asks about the diagnosis of
impairment. This has not been done. She does have mild carpal tunnel syndrome on the right and
impingement syndrome on the right shoulder." AR 520. The form/questionnaire Dr. Eckhoff is
referring to is the residual functional capacity assessment Dr. Eckhoff filled out on August 23,2002.
The AU interpreted Dr. Eckhoff's statement as meaning that Dr. Eckhoff "did not relate [Hanneman's]
subjective complaints to medical findings." AR 21. The AU also found that this same statement and
his interpretation of it undermined the credibility of Hanneman's statements concerning the severity
of her fibromyalgia. AR 18. As noted above, Dr. Eckhoff's notes from the August 23, 2002
appointment identify Hanneman as having carpal tunnel syndrome and impingement syndrome. In
addition, the residual functional capacity assessment Dr. Eckhoff filled out on that same day had a
section titled "diagnosis of impairments that you have made in this patient's case" under which Dr.
Eckhoff listed Hanneman's carpal tunnel and shoulder impingement syndromes. AR 845. On remand,
the AU will have an opportunity to reevaluate Dr. Eckhoff's findings in light of all the medical
evidence.
26
ORDERED that the decision ofthe Commissioner is vacated and this action is remanded
to the Social Security Administration for the purpose of determining, consistent with this
Opinion and Order, whether Hanneman has a severe impairment, either singly or in combination
and, ifso, for the Social Security Administration to engage in the remaining steps ofthe analysis
under 20 C.F.R. § 404.1S20(a)(4).
Dated May ~,2012.
BY THE COURT:
~a~
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
27
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