Cumella v. Astrue

Filing 17

ORDER granting 14 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 3/26/13. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
SHELLEY CUMELLA,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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CIV. 12-5015-JLV
ORDER REVERSING
DECISION OF THE
COMMISSIONER AND
REMANDING FOR
CALCULATION AND
AWARD OF BENEFITS

INTRODUCTION
On November 15, 2009, plaintiff Shelley Cumella applied for disability
insurance benefits (“DIB”). (Administrative Record, pp. 142-44).1 Plaintiff
alleged a disability onset date of September 25, 2002. Id. After denial of
her application, an Administrative Law Judge (“ALJ”) held an evidentiary
hearing on July 6, 2010. Id. at pp. 33-61. On November 22, 2010, the ALJ
concluded Ms. Cumella was not disabled and denied her benefits.2 Id. at
pp. 17-32). The Appeals Council denied plaintiff’s request for review. Id. at

1

The court will cite to information in the administrative record by
“AR, p. ____.”
2

The ALJ found Ms. Cumella met the insured status requirement for
benefits through December 31, 2005. (AR at p. 23).

pp. 1-3. The decision of the ALJ became the final decision of the
Commissioner.3 Id. at p. 1.
Plaintiff timely filed her complaint appealing from the ALJ’s decision.
(Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 7).
The court issued a briefing schedule requiring the parties to file a joint
statement of material facts (“JSMF”). (Docket 9). If there were any disputed
facts, the parties were required to attach a separate joint statement of
disputed facts. Id. The parties filed their JSMF. (Docket 12). Plaintiff then
filed a motion for an order reversing the decision of the Commissioner.
(Docket 14). For the reasons stated below, plaintiff’s motion to reverse the
Commissioner’s decision (Docket 14) is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 12) is incorporated by reference. Further
recitation of salient facts is included in the discussion section of this order.
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.

3

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Ms. Colvin is
automatically substituted for Michael J. Astrue as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).
2

Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court reviews the
Commissioner’s decision to determine if an error of law was committed.
Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but is enough
that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir.
2006) (internal citation and quotation marks omitted). Substantial evidence
is evidence that a reasonable mind might accept as adequate to support the
Commissioner’s decision. Choate, 457 F.3d at 869 (quoting Ellis v.
Barnhart, 392 F.3d 988, 993 (8th Cir. 2005)). The review of a decision to
deny disability benefits is “more than an examination of the record for the
existence of substantial evidence in support of the Commissioner’s decision
. . . [the court must also] take into account whatever in the record fairly
detracts from that decision.” Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.
2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would have decided the case differently, it cannot reverse the
Commissioner’s decision if that decision is supported by good reason and is
based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). A reviewing court may not reverse the Commissioner’s
decision “ ‘merely because substantial evidence would have supported an

3

opposite decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995)).
DISCUSSION
“Disability” is defined as the inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment [or combination of impairments] which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled.4
20 CFR §§ 404.1520(a)(4). If the ALJ determines a claimant is not disabled
at any step of the process, the evaluation does not proceed to the next step
as the claimant is not disabled. Id. The five-step sequential evaluation
process is:
(1) whether the claimant is presently 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 listed in the regulations (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 . . . past relevant work; and (5) if the claimant
cannot perform the past work, the burden shifts to the

4

The same five-step analysis determines eligibility for DIB benefits.
House v. Astrue, 500 F.3d 741, 742 n. 1 (8th Cir. 2007).
4

Commissioner to prove there are other jobs in the national
economy the claimant can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied
the five-step sequential evaluation required by the Social Security
Administration regulations. (AR at pp. 20-32).
STEP ONE
At step one, the ALJ determined Ms. Cumella had not been engaged in
substantial gainful activity since September 25, 2002. Id. at p. 23;
20 CFR §§ 404.1520(b) & 404.1572.
STEP TWO
At step two, the ALJ must decide whether the claimant has a
medically determinable impairment that is severe or a combination of
impairments that are severe. 20 CFR §§ 404.1520(c). A medically
determinable impairment can only be established by an acceptable medical
source. 20 CFR §§ 404.1513(a). Accepted medical sources include, among
others, licensed physicians. Id.
The regulations describe “severe impairment” in the negative. “An
impairment or combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic work activities.”
20 CFR § 404.1521(a). Thus, a severe impairment is one which significantly
limits a claimant’s physical or mental ability to do basic work activities.

5

“Basic work activities” are defined to “mean the abilities and aptitudes
necessary to do most jobs.” Id. at § 404.1521(b). The regulations explain
those “abilities and aptitudes” involve:
(1)

Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or
handling;

(2)

Capacities for seeing, hearing, and speaking;

(3)

Understanding, carrying out, and remembering
simple instructions;

(4)

Use of judgment;

(5)

Responding appropriately to supervision, co-workers
and usual work situations; and

(6)

Dealing with changes in a routine work setting.

Id.
The ALJ found Ms. Cumella had eight severe impairments.5 (Docket
12 at ¶ 2.1). Ms. Cumella’s severe impairments are:

5

The court directed the parties to provide definitions of medical terms but
no definitions were provided. (Docket 9 at ¶ 1(a)). Consequently, the court is
compelled to provide its own medical definitions, adopting commonly
acknowledged and recognized explanations.
6

1.

Cervical disc herniation6 with probable nerve root7
compression;

2.

Thoracic disc herniation;

3.

Lumbar degenerative joint disease;8

4.

Chronic pain syndrome;9

6

Herniation is a “[p]rotrusion of an anatomic structure (e.g.,
intervertebral disk) from its normal anatomic position.” Stedman’s Medical
Dictionary 179890 (27th ed. 2000).
7

The term “nerve root” is defined as “the portion of the nerve that runs
through the bony canal and exits at each vertebral segment of the spinal cord.”
http://www.spine-health.com/glossary/n/nerve-root. The term “nerve
compression” is defined as “a condition in which pressure is placed on the
nerve causing pain, muscle weakness and potentially, nerve damage. A nerve
can become compressed as it passes between tight regions of muscles and
tissue or more commonly from spine conditions such as a herniated disc . . . .”
http://www.spine-health.com/glossary/n/nerve-compression. “Evidence of
nerve root compression [is] characterized by neuro- anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive straight-leg raising test
(sitting and supine) . . . .” 20 CFR Pt. 404, Subpt. P, App. 1 § 1.04.
8

“Degeneration of the disc tissue makes the disc more susceptible to
herniation. . . . Disc degeneration that affects the lumbar spine can cause
chronic low back pain . . . or irritation of a spinal nerve to cause pain radiating
down the leg . . . .” http://www.medicinenet.com/degenerative_disc/
page2.htm#what_are_the_symptoms_of_degenerative_disc_disease.
9

“Chronic pain persists over a longer period of time than acute pain and
is resistant to most medical treatments. It can—and often does—cause severe
problems for patients. A person may have two or more co-existing chronic pain
conditions. Such conditions can include chronic fatigue syndrome,
endometriosis, fibromyalgia, inflammatory bowel disease, interstitial cystitis,
temporomandibular joint dysfunction, and vulvodynia. It is not known
whether these disorders share a common cause.”
http://www.medicinenet.com/chronic_pain/article.htm#introduction_to
chronic_pain.
7

5.

Chronic headaches;

6.

Fibromyalgia;10

7.

Chronic opioid11 use; and

8.

Depression not otherwise specified.

Id.
Each of the severe impairments have a distinct and different physical
and mental impact. In order to put the record in perspective, the court
must first provide a medical summary of each severe impairment suffered
by Ms. Cumella and then review the evidence.
1.

Cervical disc herniation
The ALJ found Ms. Cumella suffered a severe impairment as the

result of cervical disc herniation with probable nerve root compression.
(Docket 12 at ¶ 2.1). The ALJ noted “a history of . . . disc herniation at C6-7

10

Fibromyalgia is “[a] syndrome of chronic pain of musculoskeletal origin
but uncertain cause. The American College of Rheumatology has established
diagnostic criteria that include pain on both sides of the body, both above and
below the waist, as well as in an axial distribution (cervical, thoracic, or lumbar
spine or anterior chest). . . .” Stedman’s Medical Dictionary 148730 (27th ed.
2000).
11

The term “opioid” generally “denot[es] synthetic narcotics resembling
opiates but increasingly used to refer to both opiates and synthetic narcotics.”
Stedman’s Medical Dictionary 284610 (27th ed. 2000). Ms. Cumella “takes
narcotics [methadone and morphine] and muscle relaxants and this seems to
dull her thinking.” (AR at p. 26). Methadone is a synthetic opiate.
http://www.medterms.com/script/main/art.asp?articlekey=11661. Morphine
is an opiate. Id. at 10223.
8

based on an MRI from 1997.” (AR at p. 28). A herniated cervical disc will
typically cause the following pain patterns and neurological deficits:
C6 - C7 (C7 nerve root) - Can cause weakness in the triceps
(muscles in the back of the upper arm and extending to the
forearm) and the finger extensor muscles. Numbness and tingling
along with pain can radiate down the triceps and into the middle
finger.12
“[A]rm pain from a cervical herniated disc results because the
herniated disc material ‘pinches’ or presses on a cervical nerve, causing
pain to radiate along the nerve pathway down the arm. Along with the arm
pain, numbness and tingling can be present down the arm and into the
fingertips. Muscle weakness may also be present due to a cervical herniated
disc.”13
2.

Thoracic disc herniation
The ALJ concluded Ms. Cumella suffered a severe impairment as a

result of thoracic disc herniation. (Docket 12 at ¶ 2.1). This conclusion is
supported by the MRI of January 8, 2009. (AR at p. 311). “At T6-7, there is
a focal right central disc herniation. Although this does not truly compress
the spinal cord . . . it is impressing on the anterior aspect of the right side of

12

http://www.spine-health.com/conditions/herniated-disc/cervical-hern
iated-disc-symptoms-and-treatment-options.
13

http://www.spine-health.com/conditions/herniated-disc/cervicalherniated-disc-symptoms-and-treatment-options.
9

the cord. . . . Focal right central disc herniation at T6-7 does impress on the
anterior aspect of the right side of the spinal cord.” Id.
A herniated thoracic disc may have significant physical impacts:
Pain is the most common symptom of a thoracic herniated disc
and may be isolated to the upper back or radiate in a dermatomal
(single nerve root) pattern. . . . Radiating pain may be perceived to
be in the chest or belly, and this leads to a quite different
diagnosis that will need to include an assessment of heart, lung,
kidney and gastrointestinal disorders as well as other non-spine
musculoskeletal causes. . . . If the disc herniates into the spinal
cord area, the thoracic herniated disk may also present with
myelopathy (spinal cord dysfunction). This may be evident by
sensory disturbances (such as numbness) below the level of
compression, difficulty with balance and walking, lower extremity
weakness, or bowel or bladder dysfunction.14
Ms. Cumella’s complaints of “neuropathy, irritable bowel syndrome, restless
leg syndrome . . . and weakness in both legs” are consistent with the
sensory disturbances expected from a herniated thoracic disc. (AR at p. 25).
These potential physical impacts also are consistent with Ms. Cumella’s
complaint that “a disc in the middle of her back . . . affects her driving.” Id.
at p. 26.
3.

Lumbar degenerative joint disease
The ALJ found Ms. Cumella suffered from lumbar degenerative joint

disease and this was a severe impairment. (Docket 12 at ¶ 2.1). “Lower
back (lumbar spine) osteoarthritis, sometimes called lumbosacral arthritis,

14

http://www.spine-health.com/conditions/herniated-disc/thoracicdisc-herniation-symptoms.
10

. . . produces stiffness and pain in the lower spine and sacroiliac joint
(between the spine and pelvis).”15 The general characteristics of lumbar
degenerative disc disease include:
Pain that is centered on the lower back, although it can radiate to
the hips and legs;
Pain that is frequently worse when sitting, when the discs
experience a heavier load than when patients are standing,
walking or even laying down; [and]
Pain that is exacerbated by certain movements, particularly
bending, twisting or lifting.16
4.

Chronic pain syndrome
The ALJ found Ms. Cumella suffered a severe impairment of chronic

pain syndrome (“CPS”). (Docket 12 at ¶ 2.1). By itself, CPS can have a
significant impact on an individual’s lifestyle and work performance.
“Chronic pain tends to interfere with the ability to perform activities of daily
living and affects the quality of life.”17 The major effects of CPS “are
depressed mood, fatigue, reduced activity and libido, . . . dependent
behavior, and disability out of proportion with impairment. . . .”18

15

http://www.spine-health.com/conditions/arthritis/osteoarthritis

-spine.
16

http://www.spine-health.com/conditions/degenerative-disc-disease/
lumbar-degenerative-disc-disease.
17

http://www.medicinenet.com/chronic_pain/symptoms.htm.

18

http://emedicine.medscape.com/article/310834-overview.
11

“Musculoskeletal disorders associated with chronic pain include the
following: . . . [d]isk herniation/facet osteoarthropathy . . . [f]ibromyalgia . . .
[m]echanical low back pain . . . [m]uscular strains and sprains . . . .”19
“Neurologic disorders associated with chronic pain include . . . [c]ervical
radiculopathy, [t]horacic outlet syndrome . . . [c]hronic daily headaches,
[m]uscle tension headaches, [m]igraine headaches, [t]emporomandibular
joint dysfunction . . . [a]typical facial pain . . . .” Id. Urological and
gastrointestinal disorders also are frequently associated with CPS. Id.
Finally, psychological disorders including depression and sleep disturbances
frequently occur with CPS. Id. “Common reactions to chronic pain over
time include fear, frustration, anger, depression, and anxiety. These
feelings can make it increasingly tough to conquer chronic pain . . . .”20
5.

Chronic headaches
The ALJ separately identified chronic headaches as one of Ms.

Cumella’s eight severe impairments. (Docket 12 at ¶ 2.1). He noted Ms.

19

http://emedicine.medscape.com/article/310834-overview#aw
2aab6b2b2.
20

http://www.webmd.com/pain-management/tc/chronic-painsyndrome-topic-overview.
12

Cumella claims to suffer from chronic headaches21 and suffers with
headaches “24/7.” (AR at pp. 25-26).
6.

Fibromyalgia
The ALJ found fibromyalgia to be one of Ms. Cumella’s severe

impairments. (Docket 12 at ¶ 2.1). Fibromyalgia typically involves
characteristics of “chronic pain, stiffness, and tenderness of muscles,
tendons, and joints without detectable inflammation.”22 It is common for a
“large majority of patients with fibromyalgia” to suffer from “undue fatigue”
and “sleep disorders.” Id. “Fibromyalgia is considered an arthritis-related
condition. However, it is not a form of arthritis . . . since it does not cause
inflammation in the joints, muscles, or other tissues or damage them. But
fibromyalgia can (like arthritis) cause significant pain and fatigue and it can
similarly interfere with a person’s ability to carry on daily activities.” Id.
“Mental and/or emotional disturbances occur in over half of people with
fibromyalgia. These symptoms include poor concentration, forgetfulness,
and memory problems, as well as mood changes, irritability, depression,
and anxiety. . . . Other symptoms of fibromyalgia include migraine and
tension headaches, numbness or tingling of different parts of the body,

21

A chronic headache is a “condition . . . that lasts 3 months or more.”
http://www.medicinenet.com/headache/glossary.htm.
22

http://www.medicinenet.com/image-collection/fibromyalgia_picture/
picture.htm.
13

abdominal pain related to irritable bowel syndrome . . . . Any of the above
symptoms can occur intermittently and in different combinations.”23
7.

Chronic opioid use
The ALJ found Ms. Cumella was severely impaired by chronic opioid

use. (Docket 12 at ¶ 2.1). The ALJ noted Dr. Repas found Ms. Cumella
“was on chronic opioid therapy . . . [and] that some of [her] symptoms such
as flushing and hypotension24 could be associated with her opioid use.” (AR
at p. 30). “In recent years there has been an increased use of opioids in the
management of non-malignant chronic pain. . . . Common adverse reactions
in patients taking opioids for pain relief include: nausea and vomiting,
drowsiness, itching, dry mouth, miosis, and constipation. . . . Opioids may
increase risk of traffic accidents and accidental falls.”
8.

Depression not otherwise specified
The ALJ found Ms. Cumella’s eighth severe impairment to be

“depression–NOS . . . .” (Docket 12 at ¶ 2.1). Depression-NOS references
“depressive disorders that are impairing but do not fit any of the officially
specified diagnoses. . . . [The] diagnosis requires an expenditure of time that
is deemed unreasonable for most primary care physicians. For this reason,

23

http://www.medicinenet.com/fibromyalgia/page2.htm.

24

Hypotension is another name for low blood pressure and “for many
people . . . cause symptoms of dizziness and fainting.” http://www.mayoclinic
.com/health/low-blood-pressure/DS00590.
14

physicians often use this code as a proxy for a more thorough diagnosis.”25
“If a patient exhibits the depressive symptoms as the major feature of their
disorder, but does not meet the criteria for any other mood disorder or any
other mental disorder, then the depressive disorder, NOS is used.”26 “NOS
[is] a mental disorder described by an all-encompassing low mood
accompanied by low self-esteem, and loss of interest or pleasure in normally
enjoyable activities. . . . [Persons] with NOS have some symptoms [of] poor
concentration and memory, withdrawal from social situations and activities,
reduced sex drive, and thoughts of death or suicide, insomnia, loss of sleep,
loss of appetite, fatigue, headaches and digestive problems.”27
STEP THREE
At step three, the ALJ determines whether claimant’s impairment or
combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix
1”). 20 CFR §§ 404.1520(d), 404.1525, and 404.1526. If a claimant’s
impairment or combination of impairments meets or medically equals the
criteria for one of the impairments listed and meets the duration
requirement of 20 CFR § 404.1509, the claimant is considered disabled.

25

http://en.wikipedia.org/wiki/Depressive_Disorder_Not_Otherwise_
Specified.
26

http://www.depression-guide.com/depressive-disorder-nos.htm.

27

Id.
15

The ALJ determined Ms. Cumella did not have an impairment or
combination of impairments which met or were medically equal to one of the
impairments listed in Appendix 1. (AR at p. 24). To arrive at this
conclusion, the ALJ rejected the opinion of Dr. Frost, Ms. Cumella’s treating
physician and a pain specialist. Instead, the ALJ adopted the opinions of
Drs. Pelc, Soule, and Gunn, consulting psychologists, and Drs. Whittle and
Entwistle, consulting physicians. (AR at pp. 24 & 29). Ms. Cumella objects
to the ALJ’s conclusion as an error of law. (Docket 14 at p. 3). “The ALJ
rejects treating physician Dr. Steven Frost who has seen, examined and
treated Ms. Cumella over 35 separate visits over the course of the last 15+
years.” Id. at p. 5. “Dr. Frost’s Medical Source Statement and the
limitations outlined therein, are remarkably consistent with the limitations
documented by Dr. Craig Mills, a board certified physiatrist and rehab
specialist hired by the Social Security Administration to do a comprehensive
consultative exam on Ms. Cumella.” Id. at p. 4. “Both Dr. Frost, the longstanding treating physician, and Dr. Mills, the specialist who saw Claimant
at the request of DDS, found that Claimant as a result of her pain and
medical limitations would not be able to complete an eight hour day.” Id. at
p. 8. “Dr. Frost’s and Dr. Mills’ opinions are well supported by objective
medical tests and are consistent with the other evidence of record and
should have been given controlling weight.” Id. at p. 9.

16

“A treating physician’s opinion is given controlling weight if it is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.”
House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) (citation and internal
quotation marks omitted). However, “while entitled to special weight, it does
not automatically control, particularly if the treating physician evidence is
itself inconsistent.” Id. (citations and internal quotation marks omitted). If
the treating physician’s opinion is not given controlling weight under
20 CFR §§ 404.1527(d)(2) and 416.927(d)(2), it must be weighed considering
the factors in 20 CFR §§ 404.1527(d)(2)-(6) and 416.927(d)(2)-(6). See
Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003) (“Where controlling
weight is not given to a treating source’s opinion, it is weighed according to
the factors enumerated . . . .”). The ALJ must “give good reasons for
discounting a treating physician’s opinion.” Dolph v. Barnhart, 308 F.3d
876, 878-79 (8th Cir. 2002). The court must “defer to an ALJ’s credibility
finding[s] as long as the ALJ . . . gives a good reason [for those findings].”
Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (internal citation and
quotation marks omitted).
For the reasons stated below, the ALJ’s decision to reject the opinions
of Dr. Frost and Dr. Mills was not supported by good reason and was not

17

based on substantial evidence. Guilliams, 393 F.3d at 801; Dolph, 308 F.3d
at 878-79; and Schultz, 479 F.3d at 983.
The ALJ rejected Dr. Frost’s opinions with the following explanation:
“The undersigned declines to give this opinion controlling weight for it is
inconsistent with other evidence in the record, including the medical
opinions given greater weight, and it is not well supported by objective
medical findings.” (AR at p. 27). “Dr. Frost’s opinion is not supported by
medical findings in his clinical records . . . or the findings of the claimant’s
other treating and examining medical sources.” Id. at p. 28.
The ALJ made the following observations about Dr. Frost’s medical
opinions:
Treating physician Dr. Steve Frost completed a medical source
statement on May 29, 2010 in which he opined the claimant can
perform less-than-sedentary work, and not work even 8 hours per
day. He opined the claimant was not a good candidate for an
employer secondary to her pain . . . . The undersigned declines to
give this opinion controlling weight for it is inconsistent with other
evidence in the record, including the medical opinions given
greater weight, and it is not well supported by objective medical
findings.
The limitations given by Dr. Frost are afforded less weight. He
opined the claimant cannot travel without a companion for
assistance. This is in apparent contradiction to the claimant’s
testimony at hearing that she sometimes drives, and in a written
statement that she is able to go out alone. The doctor stated he
has treated the claimant for 11 years and her condition has
progressively worsened . . . . This appears to contradict the
claimant’s testimony that her condition has remained the same
since 2003. The doctor opined the claimant is unable to
concentrate for any period of time (measured in minutes),
secondary to pain . . . . The undersigned notes this sort of
18

limitation was not apparent during the hearing—which lasted
about 40 minutes—during which time the claimant had no evident
problems testifying and responding appropriately to questions.
Dr. Frost’s opinion is not supported by medical findings in his
clinical records . . . or the findings of the claimant’s other treating
and examining medical sources. For example, when he referred
the claimant to Dr. Repas in February, 2009, Dr. Frost made the
statement that the claimant functions on her medication, which
included narcotic medication—but that she had had complaints
that were not adequately diagnosed and could not be directly
attributed to the side effects of the medication . . . . This statement
appears to be inconsistent with the extreme limitations given later
by Dr. Frost which he mostly attributed to the claimant’s back
impairments—impairments that were established long before he
referred the claimant to Dr. Repas . . . .
Id. at pp. 27-28. The ALJ concluded Dr. Frost’s examination in April of
2003 was inconsistent with Dr. MacLachlan’s examination just two months
earlier. Id. at p. 28. That conclusion is inconsistent with the entirety of the
relevant portions of Dr. Frost’s April 2003, report.
The patient has had a complete workup both neurologically and
with her primary care [Dr. Elston] with no significant etiology for
these new sensations of pain and numbness. She almost has a
fibromyalgic-type pattern although patients with fibromyalgia do
not typically complain of numbness in the extremities or severe
electric shock pain; therefore, I am going to have to treat the
patient as a patient with fibromyalgia and neuropathic pain with
an unclear etiology.
She has no change in the location. It is throughout the entire
body. The quality is electric. The intensity can go from 4/10 to
10/10. The duration is chronic. . . .
There are multiple tender points throughout the upper thoracic
area, even across the medial epicondyles bilaterally in the elbow
region.
Id. at p. 305; see also Docket 12 at ¶ 3.7.
19

The ALJ’s conclusion regarding Dr. MacLachlan’s cervical finding is
simply wrong. The ALJ failed to note Dr. MacLachlan made two distinct
observations on February 12, 2003.28 Dr. MacLachlan reviewed two
separate MRIs and noted Ms. Cumella suffered left paracentral cervial disc
herniation at C6-7 (1997) and right paracentral thoracic disc herniation at
T6-7 (2003). (AR at p. 303; see also AR at p. 311). “Cervical MRI scan
performed in 9-4-97, demonstrates a left paracentral disk herniation at C67 level and a thoracic MRI study performed on 1-8-03. This demonstrates a
right parcentral disk herniation at 6-7 level.” Id. at p. 303. While Dr.
MacLachlan found Ms. Cumella to have full range of cervical motion, he
reported “the patient has had chronic headaches for a number of years
which may be cervicogenic29 in origin. I am unable to explain the patient’s
migratory paresthesias and lower extremity pain. . . . It is doubtful that the

28

The ALJ erroneously reports Dr. MacLachelan’s report as February 2,
2003. (AR at p. 28).
29

“Cervicogenic headache is a syndrome characterized by chronic
hemicranial pain that is referred to the head from either bony structures or soft
tissues of the neck.” Cevicogenic Headache: A Review of Diagnostic and
Treatment Strategies, David M. Biondi, DO, J. Am. Osteopath Association, April
1, 2005, vol. 105 no. 4 (Abstract). “Cervicogenic headache can be a perplexing
pain disorder that is refractory to treatment if it is not recognized. . . . the pain
is likely referred from one or more muscular, neurogenic, osseous, articular, or
vascular structures in the neck.” Id.
20

patient’s thoracic disk herniation is responsible for her migratory
dysesthesias30 and lower extremity pain.” Id.
In addition, the ALJ emphasized that Dr. MacLachlan’s examination
of Ms. Cumella on February 12, 2003, was “claimant described her general
health as good, with no significant changes.” (AR at p. 28). This statement
in Dr. MacLachlan’s report is taken out of context. In the ROS (review of
systems) portion of the report, Dr. MacLachlan notes Ms. Cumella’s
“[g]eneral health has been good with no significant changes noted.” (AR at
p. 301). But other sections of the ROS report “[p]ositive for headaches . . .
[p]ositive for joint swelling and stiffness . . . .” Id. (emphasis in orginal).
On that date, Ms. Cumella was taking “Zoloft, Naproxen, methadone . . .
[and] ibuprofen p.r.n.” Id. at p. 300.
The ALJ also wrote Dr. MacLachlan’s report noted “[n]o abnormalities
were found from an examination of the lumbar and thoracic spines.” Id. at
p. 28. The ALJ left out Dr. MacLachlan’s report that “[p]alpation of the

30

Dysesthesias refer to “[a]bnormal sensations on the skin, such as a
feeling of numbness, thingling, prickling, or a burning or cutting pain.” Taber’s
Cyclopedic Medical Dictionary at p. 587 (18th ed.).
21

cervical spine revealed palpable tenderness over the right nuchal31 insertion
site.” Id. at p. 302.
While Dr. Frost’s finding of thoracic tenderness is inconsistent with
Dr. MacLachlan’s one-day finding, this minor variance in patient
responsiveness on a given day is not inconsistent with the doctors’ ultimate
conclusions. Those diagnoses are summarized:
Dr. MacLachlan - chronic daily tension headaches (which may be
c e r v i c ogenic hea da ch e s ) ,
migratory
dysesthesias and lower extremity pain.
Dr. Frost - myofascial neck pain, occipital tension headache,
fibromyalgia-type pattern with neuropathic pain.
Id. at pp. 303 & 305.
The ALJ adopted Dr. Entwistle’s opinions over the opinions of Dr.
Frost.
Dr. Frederick Entwistle . . . opined the claimant can perform a
limited range of sedentary exertional work . . . .32 This opinion is
given greatest weight . . . . Dr. Entwistle’s opinion is most
consistent with the overall weight of the evidence, and it is well
supported by his narrative discussion. He noted evidence the
claimant underwent an orthopedic examination on October 18,
2005, which revealed multiple medical concerns evaluated

31

The “nuchal ligament . . . is a fibrous membrane, which, in the neck,
represents the supraspinal ligaments of the upper vertebrae. . . . It extends
from the external occipital protuberance and median nuchal line to the spinous
process of the seventh cervical vertebra.” http://en.wikipedia.org/wiki/
Nuchal_ligament.
32

“Dr. Frederick Entwistle . . . reviewed the evidence of record through
April 2, 2009 . . . .” (AR at p. 27).
22

extensively over the years but with no clear explanation for the
claimant’s symptoms . . . . He noted evidence that the claimant
had not appeared for a scheduled EMG (electromyography, or
nerve conduction study) . . . . The doctor noted that he gave
consideration to the claimant’s subjective reports of pain in his
assessment, and opined she should be able to alternate positions
from sitting, standing, or walking . . . . He noted his impression
that the claimant’s symptoms were of greater severity than would
normally be expected from her medically determinable
impairments. He opined she was not completely credible . . . .
Id. at p. 27; see also Docket 12 at ¶ 3.36. Dr. Entwistle’s Physical Residual
Functional Capacity Assessment identified Ms. Cumella’s primary diagnosis
as “Fibromyalgia/Chronic Pain Syndrome” and a secondary diagnosis of
“DDD” [degenerative disc disease]. (AR at p. 269). Dr. Entwistle’s
assessment makes no mention of the other five severe physical impairments
endorsed by the ALJ’s decision. For whatever reason, the ALJ chose not to
mention in his comparative analysis of credibility the results of a number of
MRIs which Dr. Entwistle failed to explain and which contradicted Dr.
Entwistle’s ultimate assessment:
1.

“MRI of the cervical on 9/4/97 showed perhaps a
very small central disk protrusion C7-T1”33 versus
“[c]ervical MRI on 2/16/07 revealed right sided disc
herniation at C5-6 with compression of the right
side of the cord and probable impingement of the
right C6 nerve root.”34

33

AR at p. 271.

34

AR at p. 276.
23

2.

“MRI of the thoracic on 1/8/03 noted right central
herniation at T6-7 but doesn’t compress the spinal
cord”35 versus “MRIs in file of thoracic on 1/8/03
revealed right central herniation at T6-7 which does
impress on the anterior aspect of the right side of
the spinal cord.”36

3.

“MRI of the lumbar on 1/8/03 was normal”37
versus “MRI of the lumbar on 2/16/07 revealed
minor DDD and facet joint degenerative disease.”38

With Dr. Entwistle’s contradictory statements, it is unclear whether the
doctor’s statement “[t]he severity of the symptoms is greater than would
ordinarily be expected on the basis of claimant’s impairment” (AR at p. 274)
is based on his first interpretations expressed at page 271 of the
administrative record, or his second, more severe interpretations expressed
at page 276.
Finally, Dr. Entwistle’s opinions were accepted by the ALJ even
though the doctor stated there were no medical source conclusions about
Ms. Cumella’s limitations which were significantly different from his
opinions. Id. at p. 275. Dr. Entwistle’s declaration is inconsistent with the
findings of Drs. Frost, Mills, and MacLachlan, as well as the ALJ’s medical-

35

AR at p. 271.

36

AR at p. 276.

37

AR at p. 271.

38

AR at p. 276.

24

legal findings Ms. Cumella suffered a total of seven severe physical
impairments.
The ALJ also adopted Dr. Whittle’s opinions over the opinions of Dr.
Frost. The ALJ reported Dr. Whittle’s opinions as follows:
Dr. Kevin Whittle . . . concurred with the limitations given by Dr.
Entwistle.39 Dr. Whittle noted his impression that the claimant’s
symptoms appeared to be out of proportion to the objective
medical findings although depression might be contributing to her
symptoms. He noted evidence of a physical examination that
showed some decreased range of motion in the cervical spine, but
no inflammatory arthritis. He noted MRIs of the spine to show
degenerative changes but no nerve root compression. . . .
Id. at p. 27. The ALJ gave “great weight” to the opinions of Dr. Whittle as
being “consistent with the overall evidence of record[,]” even though the
doctor failed to acknowledge the existence of “probable cervical nerve root
compression[.]” Id. As discussed above, the MRI studies did more than
“show some degenerative changes,” they disclosed herniation with
compression–a separate, distinct, and significant impairment of the cervical
and thoracic spine. Id.
It is inappropriate for the ALJ to make a substantive medical finding
Ms. Cumella suffers a severe impairment of “cervical disc herniation with
. . . probable nerve root compression,” but then accept the reports of those

39

“Dr. Kevin Whittle . . . reviewed the evidence or record through July 29,
2009 . . . .” (AR at p. 27).

25

physicians who reported no “significant medical findings in the cervical area
. . . .” Id. at p. 27. “The opinion of a consulting physician who examines a
claimant once or not at all does not generally constitute substantial
evidence.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). In this
case, the reviews conducted by the consulting physicians are not supported
by the objective medical evidence. These consulting experts failed to find
Ms. Cumella suffered from not two or three severe impairments, but seven
severe physical impairments.
The consulting physicians did not have access to the entire record.
Dr. Entwistle examined the record through April 2, 2009, and Dr. Whittle
examined the record through July 29, 2009. (AR at p. 27). Yet, Dr. Frost’s
final report was made on May 29, 2010. Id. at pp. 620-26. This report was
based on his work with Ms. Cumella for over 11 years. Consulting
physicians, who did not examine the claimant, should be given less weight
especially if those sources “did not have access to relevant medical records,
including relevant medical records made after the date of evaluation.”
McCoy v. Astrue, 648 F.3d 605, 616 (8th Cir. 2011) (citing Wildman v.
Astrue, 596 F.3d 959, 968 (8th Cir. 2010)).
The ALJ also seems to reject Dr. Frost’s opinions because “[t]he record
does not contain evidence of both a sitting and supine positive straight leg
raise test.” (AR at p. 24). This statement comes from Appendix 1.

26

“Examination of the spine should include a detailed description of gait,
range of motion of the spine given quantitatively in degrees from the vertical
position (zero degrees) or, for straight-leg raising from the sitting and supine
position (zero degrees), any other appropriate tension signs, motor and
sensory abnormalities, muscle spasm, when present, and deep tendon
reflexes.” Appendix 1 at 1.00(E)(1).
Dr. Craig Mills, a rehabilitation specialist, retained by the South
Dakota Department of Disability Determination Services, did a detailed
physical examination of Ms. Cumella for disability evaluation purposes. (AR
at p. 29). Dr. Mills’ examination contains a sitting straight leg raising
maneuver, together with a number of other flexion and extension
maneuvers. The ALJ recited only a portion of the examination performed by
Dr. Mills on March 9, 2009. Id. at p. 29. Dr. Mills’ physical examination
found:
She has restricted range of motion in the cervical spine where she
has had imaging studies demonstrating herniated discs to the left.
She is able to the left rotate 40º to the right . . . 20º. Cervical
flexion is fair at 35º. Extension is limited to 20º. She is able to
perform good shoulder range of motion in the elbow and wrist.
Apley scratch maneuver for shoulder extension and internal
rotation is T9 on the right, T10 on the left. Reflexes are 1+ for
biceps, triceps, brachial radialis and same for knee jerk and ankle
jerk 1+ and symmetric in the lower limbs. She does have some
evidence of osteoarthritic change at the MCP, PIP, and DIP joints
that is somewhat scattered and appears to be more osteoarthritic.

27

She has fair grasp at present. She has negative Tinel’s40
Phalen’s.41 She has negative pain at the extensor forearm and at
medial knee and costochondral areas anterior chest wall.
Significant soft tissue pain of areas at posterior occipital, right
more than left and trapezius levator scapular areas, tenderness at
glutcal and greater trochanter areas. She has tenderness and
pain over the mid thoracic intrascapular area above the bra line,
as well as in the lumbosacral area. In a seated position, straight
leg raise is negative, but has pain at full extension with ankle
dorsiflexion performed. Patrick’s maneuver42 is negative. She is
able to stand and arise with shoes with heel on and ambulate.
She has limited lumbar flexion to 60º with tightness in pain and
back being more mid thoracic and low back. No substantial
tremors are observed at this time with her noting this fluctuates.
Id. at p. 489; see also Docket 12 at ¶¶ 3.32-3.35. This evaluation complied
with the examination of the spine contemplated by Appendix 1, 1.00(E)(1).
No treating or consulting physician challenged Dr. Mills’ opinions because of
the absence of a supine leg raising test. Discounting Dr. Mills’ opinions on
this basis is without merit. Dismissing Dr. Mills’ examination and opinions
because of the absence in the record of a particular test which the ALJ
thought should be performed is wrong.

40

“Tinel’s sign is a way to detect irritated nerves. It is performed by
lightly tapping (percussing) over the nerve to elicit a sensation of tingling or
‘pins and needles’ in the distribution of the nerve.” http://en.wikipedia.org/
wiki/Tinel_sign.
41

“Phalen’s maneuver is a diagnostic test for carpal tunnel syndrome.”
http://en.wikipedia.org/wiki/Phalen_maneuver.
42

“Patrick’s test or FABER test (for Flexion, Abduction and External
Rotation) is performed to evaluate pathology of the hip joint or the sacroiliac
joint.” http://en.wikipedia.org/wiki/Patrick’s_test.

28

The ALJ also declined to give any weight to Dr. Mills’ opinions
because the doctor expressed the “opinion that the claimant cannot work 8
hours per day, 5 days per week goes to the issue under consideration in this
decision, and it is a matter reserved to the Commissioner . . . .” (AR at
p. 29) (citations omitted). “A medical source opinion that an applicant is
‘disabled’ or ‘unable to work,’ . . . involves an issue reserved for the
Commissioner and therefore is not the type of ‘medical opinion’ to which the
Commissioner gives controlling weight.” Ellis, 392 F.3d at 994. While the
ALJ is entitled to disregard Dr. Mills’ opinion which invades the ultimate
authority of the Commissioner, that does not mean the ALJ is entitled to
reject the remaining medical opinions of the doctor.
Dr. Mills’ “unable to work” opinion is “only one part of a larger
medical record supplied [by the physician] and [the claimant’s] other
treating physicians.” Brown v. Astrue, 611 F.3d 941, 952 (8th Cir. 2010)
(citing Cox v. Barnhart, 345 F.3d 606, 609 (8th Cir. 2003). “Viewed in
context of her medical record, [the physician’s] letter is a culmination of the
numerous visits [the claimant] had with her past doctors, and his
experience with treating her chronic pain.” Id. (citing Cox, 345 F.3d at 609).
The “larger medical record” supports Dr. Mills’ medical opinions relating to
Ms. Cumella’s chronic pain and physical limitations. Id. at 953.

29

The ALJ rejected Dr. Frost’s and Dr. Mills’ opinions regarding Ms.
Cumella’s restricted range of motion of her lower back. (AR at pp. 28-29).
The ALJ also ignored Dr. MacLachlan’s inability to explain Ms. Cumella’s
“migratory dysesthesias and lower extremity pain.” Id. at p. 28. Rather
than adopting the findings and opinions of a pain specialist and a
rehabilitative specialist, the ALJ accepted the general finding of Dr. Repas,
an endocrinologist, regarding her range of motion on one particular day. Id.
at p. 29.
Additionally, the ALJ gave the “greatest weight to the testimony of Dr.
Pelc [a consulting psychologist] regarding the claimant’s mental impairment
and these are reflected in the residual functional capacity shown above.”
(AR at p. 30). The ALJ cannot discount the opinions of Dr. Frost or Dr. Mills
based on Dr. Pelc’s pychological evaluation. Dr. Pelc only addressed Ms.
Cumella’s mental impairment, her depression. “I am just evaluating her
psychological status.” Id. at p. 41; see also id. at p. 630.
The length of Dr. Frost’s treating relationship and the frequency of his
examinations of Ms. Cumella are factors to consider when determining the
weight to give a treating physician’s opinion. 20 CFR § 416.927(d)(2)(i). Dr.
Frost’s opinions are consistent with his own notes and are consistent with
the other medical and non-medical sources providing counseling and
therapy to Ms. Cumella. 20 CFR § 416.927(a)-(f).

30

The ALJ erred, both factually and as a matter of law, when he chose
to give substantial weight to the opinions of the consulting physicians. The
Commissioner’s findings on this issue are not supported by substantial
evidence in the record as a whole. 42 U.S.C. § 405(g); Choate, 457 F.3d at
869. Dr. Frost’s opinions are entitled to controlling weight. House, 500 F.3d
at 744; see also Medhaug v. Astrue, 578 F.3d 805 (8th Cir. 2009). “[A]
treating physician’s opinion is given controlling weight if it is well supported
by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence.” Id. at 815 (quoting
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (internal quotation
marks omitted).
Having concluded Dr. Frost’s opinions are entitled to controlling
weight, it is necessary at step three of the analysis to determine whether Ms.
Cumella had “an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 . . . .” (“the criteria”) (AR at p. 24) (emphasis deleted). In
addressing the criteria, the ALJ stated “[t]he claimant43 has specifically
considered the listings at 1.02, 1.04, 11.00, 12.04, and 12.09 and finds
these are not met or equaled.” Id.

43

This is a typographical error as the ALJ certainly meant “the
undersigned” or “the ALJ.”
31

Listing 1.02 focuses on “[m]ajor dysfunction of a joint(s) (due to any
cause)[.]” Appendix 1 at 1.02. Dr. Frost does not identify any joint
dysfunction which qualifies under listing 1.02 of the criteria. Listing 1.04
focuses on “[d]isorders of the spine (e.g., herniated nucleus pulposus,44
spinal arachnoiditis,45 spinal stenosis,46 osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture)[.]” Id. at 104. These spinal
disorders must “result[] in compromise of a nerve root . . . or the spinal
cord. With:
A.

Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg
raising test (sitting and supine);

or

44

“Herniated nucleus pulposus” is more commonly known as a
herniated disc. “A herniated (slipped) disk occurs when all or part of a
disk in the spine is forced through a weakened part of the disk.”
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001478.
45

“Spinal arachnoiditis” is “a chronic pain disorder caused by the
inflammation of the arachnoid membrane and subarachnoid space that
surround the nerves of the spinal cord.” http://www.spine-health.
com/glossary/a/arachnoiditis.
46

“Spinal stenosis is narrowing of the spinal column that causes pressure
on the spinal cord, or narrowing of the openings . . . where spinal nerves leave
the spinal column.” http://www.ncbi.nlm.nih.gov/pubmedhealth/
PMH0001477.
32

B.

Spinal arachnoiditis, confirmed by an operative note
or pathology report of tissue biopsy, or by appropriate
medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need
for changes in position or posture more than once
every 2 hours;

or
C.

Lumbar
spinal
stenosis
resulting
in
pseudoclaudication, established by findings on
appropriate medically acceptable imaging, manifested
by chronic nonradicular pain and weakness, and
resulting in inability to ambulate effectively . . . .”

Id. Both Dr. Frost’s reports and the MRIs show “[e]vidence of nerve root
compression” at C6-7 and T6-7 with “neuro-anatomic distribution of pain
. . . accompanied by sensory or reflex loss[.]”
Listing 11.00 of the criteria focuses on specific neurological disorders.
Id. The administrative record does not identify any of those disorders.
Listing 12.04 of the criteria focuses on affective disorders, including
depression, and listing 12.09 addresses substance addiction disorders. Id.
“The required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the requirements in C
are satisfied.” Id. at 12.02. To qualify as disabled under criteria B of 12.04,
the claimant must have results in at least two of the identified areas:
1.

Marked restriction of activities of daily living; or

2.

Marked difficulties in maintaining social functioning;
or

33

3.

Marked difficulties in maintaining concentration,
persistence, or pace; or

4.

Repeated episodes of decompensation, each of
extended duration[.]

Id. Ms. Cumella’s degree of limitation based upon her depression are:
restriction of activities of daily living—mild;
difficulties in maintaining social functioning—mild;
deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely manner—moderate; [and]
episodes of decompensation each of extended duration—none.
(AR at 24). Ms. Cumella does not qualify under criteria B and thus does not
qualify under either listing 12.04 or 12.09.
The court finds under listing 1.04 Ms. Cumella’s severe impairments
of cervical disc herniation and thoracic disc herniation meet or medically
equal the impairment required by Appendix 1. Ms. Cumella is disabled.
STEP FOUR47
Before considering step four of the evaluation process, the ALJ is
required to determine a claimant’s residual functional capacity (“RFC”).
20 CFR §§ 404.1520(e) and 416.920(e). RFC is a claimant’s ability to do
physical and mental work activities on a sustained basis despite any

47

Because there may be a challenge to the court’s finding of Ms. Cumella
being disabled at step three, the court will continue the review of the ALJ’s
decision.

34

limitations from her impairments. 20 CFR §§ 404.1545(a)(1) and
416.945(a). In making this finding, the ALJ must consider all of the
claimant’s impairments, including those which are not severe. 20 CFR
§§ 404.1545(e) and 416.945(e). All of the relevant medical and non-medical
evidence in the record must be considered. 20 CFR §§ 404.1520(e),
404.1545, 416.920(e), and 416.945.
“The ALJ should determine a claimant’s RFC based on all the relevant
evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of [her] limitations.”
Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v.
Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)); see also Cox, 495 F.3d at
619 (because RFC is a medical question, the ALJ’s decision must be
supported by some medical evidence of a claimant’s ability to function in the
workplace, but the ALJ may consider non-medical evidence as well);
Guilliams, 393 F.3d at 803 (“RFC is a medical question, and an ALJ’s
finding must be supported by some medical evidence.”). The ALJ “still
‘bears the primary responsibility for assessing a claimant’s residual
functional capacity based on all relevant evidence.’ ” Id. (quoting Roberts v.
Apfel, 222 F.3d 466, 469 (8th Cir. 2000)).
“In determining RFC, the ALJ must consider the effects of the
combination of both physical and mental impairments.” Stormo v.

35

Barnhart, 377 F.3d 801, 807 (8th Cir. 2004) (citing Baldwin v. Barnhart,
349 F.3d 549, 556 (8th Cir. 2003)). As stated earlier in this discussion, a
severe impairment is one which significantly limits an individual’s physical
or mental ability to do basic work activities. 20 CFR § 404.1521(a).
The ALJ concluded there was no evidence that Ms. Cumella’s
impairments, either individually or in combination, “equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix I . . . .” (AR at 24).
But the ALJ did not address how the combination of physical and mental
impairments affected the determination of RFC.
After finding fibromyalgia to be one of Ms. Cumella’s severe
impairments, the ALJ is required to take fibromyalgia into consideration
when determining her RFC. See Pirtle v. Astrue, 479 F.3d 931 at 935 (8th
Cir. 2007). The ALJ failed to do so.
“Fibromyalgia is an elusive diagnosis; ‘[i]ts cause or causes are
unknown, there’s no cure, and of greatest importance to disability law, its
symptoms are entirely subjective.’ ” Tilley v. Astrue, 580 F.3d 675, 681 (8th
Cir. 2009) (quoting Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)).
Because of this, it is inevitable a physician would rely on the subjective
statements of a patient when making a fibromyalgia diagnosis.
In Brosnahan v. Barnhart, 336 F.3d 671 (8th Cir. 2003), the United
States Court of Appeals for the Eighth Circuit held that an ALJ improperly

36

determined a claimant suffering from fibromyalgia was less than credible
when he based his determination on the claimant’s activities of daily living
and degree of treatment. “[W]e have held, in the context of a fibromyalgia
case, that the ability to engage in activities such as cooking, cleaning, and
hobbies, does not constitute substantial evidence of the ability to engage in
substantial gainful activity.” Id. at 677 (citing Kelley, 133 F.3d at 588-89. A
number of treatment options for fibromyalgia, including exercise, are
recognized.48 Id. at 672, n. 1 (the American College of Rheumatology
indicates that treatment for fibromyalgia “include[s] cold and heat
application, massage, exercise, trigger-point injections, proper rest and diet,
and medications such as muscle relaxants, antidepressants, and
anti-inflammatories.”).
The ALJ criticized Ms. Cumella for engaging in any form of exercise or
self-help therapy. “On January 27, 2004, the claimant reported . . . she was
bicycling 30 minutes per day . . . . This evidence appears to be inconsistent
with the claimant’s testimony and statements regarding her limitations.”
(AR at 28) (internal citation omitted). Yet, exercise is encouraged for
individuals suffering from fibromyalgia or CPS. “Because there is a known
link between many types of chronic pain and tense, weak muscles,

48

“Low-impact aerobic exercises, such as swimming, cycling, walking,
and stationary cross-country ski machines, can be effective fibromyalgia
treatments.” http://www.medicinenet.com/fibromyalgia/page4.htm.
37

exercise—even light to moderate exercise such as walking or
swimming—can contribute to an overall sense of well-being by improving
blood and oxygen flow to muscles. Just as we know that stress contributes
to pain . . . exercise, sleep, and relaxation can all help reduce stress,
thereby helping to alleviate pain.”49 The ALJ did not ask Ms. Cumella about
the nature of her bicycling, her exercise exertion level, or any post-exercise
consequences, i.e., pain or discomfort.
The ALJ discounted Ms. Cumella’s credibility because . . . . “[h]er
alleged limitations are not supported by objective medical findings.” (AR at
30). “Certainly the claimant’s medically determinable impairments,
including her chronic pain syndrome and fibromyalgia, have resulted in
some limitation of function—but not to the extent asserted by the claimant.
Her reported limitations are not supported by the medical opinions given
great weight.” Id.
The ALJ adopted Dr. Entwistle’s summary of Ms. Cumella’s activities
of daily living:
[Ms. Cumella] noted being up most night and sleeping only a
couple of hours, otherwise propped up on pillows to relieve pain.
Good days noted as few. Has chronic insomnia and excruciating
pain. Stays in pajamas most days and if she needs help dressing,
her husband helps her. She is able to make simple meals. Can’t
stand for long over stove. She only makes a few meals a week and
no other household chores. . . . Can only lift a couple of pounds,

49

http://www.medicinenet.com/chronic_pain/page4.htm.
38

walks short distances, can’t sit up in a chair for more than a half
hour to an hour without having to lie down, stand for more than
a half hour. . . . Has pain with reaching. . . . It appears that [Ms.
Cumella] does a lot of self limiting within her daily function and
doesn’t seem completely credible. . . .
(AR at p. 274). In light of this assessment, the ALJ found Ms. Cumella’s
description of her lifestyle activities not “completely credible” even though
the ALJ concluded “[a] written statement from the claimant’s husband . . .
generally corrobates the claimant’s statements regarding her limitations.”
Id. at p. 26. Mr. Cumella’s statement provides a detailed and lengthy
description of the limitations on his wife’s activities of daily living, including
but not limited to helping her get dressed and undressed, how he must do
the vast majority of the household chores, grocery shopping and cooking,
and how he needs to carry her from room-to-room when her pain is at an
extreme level. Id. at pp. 231-239; see also Docket 12 at ¶¶ 5.6-5.9.
The ALJ also concluded Ms. Cumella was less than credible because
she “appears to have exaggerated her complaints. She testified she spends
90% of her day (i.e., more than 21 hours) in bed but there is no evidence in
the record of bedsores or muscular atrophy as might be reasonably expected
in someone who spends most of her day in bed.” (AR at p. 30). The ALJ
took Ms. Cumella’s testimony out of context. At the administrative hearing
Ms. Cumella did testify she spend about 90 percent of her day in bed. Id. at
p. 44. But she then described what she meant by that statement:

39

It just depends upon the day. . . . I am a chronic insomniac. I
generally start my day around 1:00 in the afternoon. I will get up
on a good day and I can load the dishwasher. I go back and rest.
After a while I get up and I can throw a load of clothes in the
wash. Do minor things around the house, but still with the middle
of my back, it affects my breathing, so I need to prop myself up
with pillows and, so that is why I have to take the rest. The bad
days, I don’t move.
Id. at pp. 44-45. She further described her “bad days”:
I prop myself up. Just like I am sitting here. I prop up my mid
back and then usually I have to get my legs propped up under a
pillow. So, I spend most of my time, my room is set up just like
that. . . . in bed.
Id. at pp. 48-49. This explanation of Ms. Cumella’s activities is consistent
with her descriptions to Dr. Frost and Dr. Mills. Neither physician nor the
consulting physicians questioned her explanation because of the absence of
bedsores. The ALJ is not permitted to make what is in essence a negative
diagnosis from Ms. Cumella’s testimony. The ALJ may not “substitute his
opinion for medical evidence . . . and an ALJ’s finding must be supported by
some medical evidence.” Guilliams, 393 F.3d at 803. There is no evidence
in this record to support the ALJ’s conclusion on this matter.
The ALJ criticized Ms. Cumella’s conduct during the hearing as being
inconsistent with her statements or the statements of the physicians. “The
[ALJ] notes this sort of limitation was not apparent during the
hearing—which lasted about 40 minutes—during which time the claimant
had no evident problems testifying and responding appropriately to

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questions.” (AR at 28). This conclusion ignored Ms. Cumella’s testimony
that she was in pain as she sat through the hearing. Id. at 51. She testified
she could sit comfortably for about 20-30 minutes after which she was in
pain. Id. As she sat through the hearing she was in pain. Id.
The ALJ noted Ms. Cumella took anti-depression medications, but did
not make a finding her severe depression was “well controlled by drugs
. . . .” Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir. 2011). The ALJ
found there was “no evidence of any psychiatric hospitalization or treatment
by any mental health specialists” yet declined to accept the finding of
“[e]xamining psychologist Dr. Dewey Ertz, on March 2, 2009.” (AR at p. 31).
The ALJ acknowledged Dr. Ertz’s global assessment of functioning (“GAF”)
for Ms. Cumella “at 4550 . . . [to] represent[] serious limitations of function”
but then criticized Dr. Ertz for not specifically identifying which functional
limitations existed. Id. Yet, after completing a “mental status examination,
and administer[ing] memory testing . . . . Dr. Ertz observed that Cumella’s
‘mental status was remarkable for difficulties concentrating and focusing
her attention with physical pain, reports of anxiety and depression and an
observed depressed/anxious mood.’ ” (Docket 12 at ¶¶ 3.27 & 3.30)

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“A GAF score between 41 and 50 indicates ‘[s]erious symptoms . . . OR
any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).” (Docket 12 at ¶ 3.31 n. 2) (citing the American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, “Axis
V: Global Assessment of Functioning at *34).
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(emphasis added). Dr. Ertz’s psychological conclusions are consistent with
the records of Drs. Frost and Mills. His conclusions also are consistent with
the severe impairments developed in the record and found to exist. The ALJ
erred, both as a matter of fact and a matter of law, in rejecting the opinions
of Dr. Ertz.
Ms. Cumella’s “ability to engage in some life activities, despite the
pain it caused her, does not mean she retained the ability to work . . . .”
Tilley, 580 F.3d at 681. “[I]n the context of a fibromyalgia case, . . . the
ability to engage in activities such as cooking, cleaning, and hobbies, does
not constitute substantial evidence of the ability to engage in substantial
gainful activity.” Brosnahan, 336 F.3d at 677.
Ms. Cumella’s testimony is supported by the objective medical
evidence of all seven severe physical impairments. Her “testimony and
reports to the SSA are supported by objective medical evidence of
fibromyalgia . . . and by her consistent complaints during her relatively
frequent physicians’ visits of variable and unpredictable pain, stiffness,
fatigue, and ability to function.” Id. at 678. It is incorrect for the ALJ to
conclude Ms. Cumella’s hearing testimony that her physical limitations have
not changed since 2003 “seems inconsistent . . . .” (AR at p. 28). Ms.
Cumella’s statements reflect her “attempt to describe the variability of her
symptoms.” Brosnahan, 336 F.3d at 677. Dr. Frost’s and Dr. Mills’

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diagnoses of fibromyalgia, chronic pain, disc herniation, and degenerative
disc disease, all of which were adopted by the ALJ, “bolster[] the credibility
of [Ms. Cumella’s] complaints.” Green-Younger v. Barnhart, 335 F.3d 99,
108 (2d Cir. 2003). The ALJ erred, both as a matter of fact and a matter of
law, in his evaluation of the testimony of Ms. Cumella.
The ALJ failed to give proper consideration not only to Ms. Cumella’s
diagnosis of fibromyalgia and CPS, but to the other five severe physical
impairments and her severe mental impairment. “In determining RFC, the
ALJ must consider the effects of the combination of both physical and
mental impairments.” Stormo, 377 F.3d at 807.
Dr. Frost’s description of Ms. Cumella’s physical limitations for
arriving at a RFC are summarized:
•

lift or carry 10 pounds occasionally;

•

at one time without interruption she can sit for 15 minutes,
stand for 15 minutes, and walk for 20 minutes;

•

in total in an eight hour day she can sit, stand, or walk for one
hour;

•

never reach with either hand either overhead or otherwise;

•

with either hand occasionally engage in handling, fingering,
feeling, and push/pull activities;

•

with either foot occasionally operate foot controls;

•

occasionally climb stairs and ramps, operate a motor vehicle;

43

•

never climb ladders or scaffolds, balance, stoop, kneel, crouch
or crawl or be exposed to unprotected heights or vibrations;

•

she can tolerate noise only at the level of quiet (a library);

•

perform activities like shopping, ambulate without assistance,
use public transportation, climb a few steps with the assistance
of a handrail, prepare a simple meal and feed herself; perform
personal hygiene activities and can sort, handle, and use
papers or files; and

•

not travel without a companion for assistance and is not able to
walk a block at a reasonable pace over rough or uneven
surfaces.

(AR at pp. 620-25). Dr. Frost determined these limitations have lasted or
will last for 12 consecutive months. Id. He also stated these limitations
“were present [in the] 2002-2003 period.” Id. at 625.
Because Dr. Frost’s opinion is entitled to controlling weight, the ALJ’s
RFC, which did not incorporate Dr. Frost’s opinions, is not supported by
substantial evidence. Ms. Cumella satisfied the burden of persuasion to
demonstrate her RFC. Stormo, 377 F.3d at 806.
STEP FIVE
The “burden of production shifts to the Commissioner at step five.”
Id. Gerry Gravad, a vocational specialist, testified at the administrative
hearing. (AR at 57). Mr. Gravad concluded if the limitations reported by Dr.
Frost are applied, that individual could not perform any jobs. Id. at 59; see
also Docket 12 at ¶ 71.

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The court may affirm, modify, or reverse the Commissioner’s decision,
with or without remand to the Commissioner for a rehearing. 42 U.S.C.
§ 409(g). If the court determines that the “record overwhelmingly supports a
disability finding and remand would merely delay the receipt of benefits to
which the plaintiff is entitled, reversal is appropriate.” Thompson v.
Sullivan, 957 F.2d 611, 614 (8th Cir. 1992). Remand to the Commissioner
is neither necessary nor appropriate in this case. The Commissioner’s own
final witness resolves this case in favor of Ms. Cumella. Ms. Cumella is
disabled and entitled to benefits. Reversal is the appropriate remedy
at this juncture. Thompson, supra.
ORDER
In accord with the above decision, it is hereby
ORDERED that plaintiff's motion (Docket 14) is granted and the
decision of the Commissioner of November 22, 2010, is reversed and the
case is remanded to the Commissioner for the purpose of calculating and
awarding benefits to the plaintiff Shelley Cumella.
Dated March 26, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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