Christofferson v. Colvin
ORDER granting 15 Motion to Reverse; denying 17 Motion to Affirm. Signed by Chief Judge Jeffrey L. Viken on 3/6/18. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Plaintiff Christine Christofferson filed a complaint appealing the final
decision of Nancy A. Berryhill, the Acting Commissioner of the Social Security
Administration, finding plaintiff not disabled. (Docket 1). Defendant denies
plaintiff is entitled to benefits. (Docket 9). The court issued a briefing schedule
requiring the parties to file a joint statement of material facts (“JSMF”).
(Docket 11). The parties filed their JSMF. (Docket 14). For the reasons stated
below, plaintiff’s motion to reverse the decision of the Commissioner (Docket
15) is granted and defendant’s motion to affirm the decision of the
Commissioner (Docket 17) is denied.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 14) is incorporated by reference. Further
recitation of salient facts is incorporated in the discussion section of this order.
Plaintiff filed an application for social security disability insurance
benefits (“DIB”) alleging an onset of disability date of March 28, 2013. Id. ¶ 1.
An administrative law judge (“ALJ”) issued a decision finding plaintiff was not
disabled. Id. ¶ 3; see also Administrative Record at pp. 138-50 (hereinafter “AR
at p. ____”). Plaintiff requested review of the ALJ’s decision and the Appeals
Council denied her request for review and affirmed the ALJ’s decision. (Docket
14 ¶ 6). The ALJ’s decision constitutes the final decision of the Commissioner
of the Social Security Administration. It is from this decision which plaintiff
The issue before the court is whether the ALJ’s decision that Ms.
Christofferson was not “under a disability, as defined in the Social Security Act,
at any time from March 28, 2013, [through April 24, 2015]” is supported by the
substantial evidence in the record as a whole. (AR at p. 150) (bold omitted); see
also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By statute, the
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.”) (internal quotation marks and
brackets omitted) (citing 42 U.S.C. § 405(g)).
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.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. 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
The review of a decision to deny 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
It is not the role of the court to re-weigh the evidence and, even if this
court would decide 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 opposite
decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995)). Issues of law are reviewed de novo with deference given to
the Commissioner’s construction of the Social Security Act. See Smith,
982 F.2d at 311.
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and
entitled to DIB benefits under Title II. 20 CFR § 404.1520(a). 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 fivestep 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 Commissioner to
prove there are other jobs in the national economy the claimant
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). See also Boyd v.
Sullivan, 960 F.2d 733, 735 (8th Cir. 1992). The ALJ applied the five-step
sequential evaluation required by the Social Security Administration
regulations. (AR at pp. 139-40; see also Docket 14 ¶¶ 179-85).
At step one, the ALJ determined plaintiff had “not [been] engaged in
substantial gainful activity since March 28, 2013, the alleged onset date.”
(AR at p. 140).
“At the second step, [the agency] consider[s] the medical severity of your
impairment(s).” 20 CFR § 404.1520(a)(4)(ii). “It is the claimant’s burden to
establish that [her] impairment or combination of impairments are severe.”
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). A severe impairment is
defined as one which significantly limits a physical or mental ability to do basic
work activities. 20 CFR § 404.1521. An impairment is not severe, however, if
it “amounts to only 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. “If the impairment would have no more than a minimal effect
on the claimant’s ability to work, then it does not satisfy the requirement of
step two.” Id. (citation omitted). Additionally, the impairment must have
lasted at least twelve months or be expected to result in death. See 20 CFR
The ALJ found Ms. Christofferson suffered from “the following severe
impairments: degenerative disc disease of the lumbar and thoracic spine,
osteoarthritis of the left knee, right ankle degenerative changes, and obesity.”
(Docket 14 ¶ 180). Ms. Christofferson challenges this finding. (Docket 16 at
Ms. Christofferson asserts the ALJ failed to address the following
impairments and to find them severe:
Curvature of the spine;
Spinal central canal stenosis;
Calcaneal spurs bilaterally, and chronic plantar fasciitis;1
Pedicle fractures at L4 [and] L5;
Right knee degenerative disease;
“Plantar fasciitis and calcaneal spurs. The plantar fascia is the thick
tissue on the bottom of the foot. It connects the heel bone to the toes and
creates the arch of the foot. When this tissue becomes swollen or inflamed, it
is called plantar fasciitis.” (Docket 14 at p. 68).
Degenerative arthritis and impingement of the left hip with marked
weakness of hip flexors;2
Painful hand with mild to moderate degenerative joint disease in
both hands, also with numbness and weakness treated with a
Weakness and atrophy of scapular girdle and shoulders;
Chronic pain, or chronic pain syndrome; and
Sjogren’s, or “sicca,” autoimmune inflammatory disease.3
Id. at p. 17. Plaintiff identifies these medical conditions in her argument,
including the diagnoses, medical treatment and her response to those
treatments. Id. at pp. 3-12. But, plaintiff fails to point to any medical record
which asserts any one or more of these conditions are severe. Id. at pp. 16-20.
The medical records reference these conditions but identify them as
either mild or responsive to injections, medications, physical therapy or other
therapies. See Docket 14. A diagnosis of a medical condition without
“Primary degenerative arthritis, also called osteoarthritis, mostly affects
cartilage, the hard but slippery tissue that covers the ends of bones where they
meet to form a joint. . . . In osteoarthritis, the surface layer of cartilage breaks
and wears away. This allows bones under the cartilage to rub together,
causing pain, swelling, and loss of motion of the joint. Over time, the joint may
lose its normal shape. Also, small deposits of bone—called osteophytes or bone
spurs—may grow on the edges of the joint. Bits of bone or cartilage can break
off and float inside the joint space.” (Docket 14 at pp. 68-69).
“Sicca syndrome: An autoimmune disease, also known as Sjogren
syndrome, that classically combines dry eyes, dry mouth, and another disease
of connective tissue such as rheumatoid arthritis (most common), lupus,
scleroderma or polymyositis. . . . Sjogren syndrome is an autoimmune disorder
in which the body’s immune system mistakenly reacts to the tissue in glands
that produce moisture, such as tear and salivary glands. It is a chronic,
inflammatory disease that often progresses to a more complex, systemic
disorder. . . . Secondary Sjögren syndrome—occurs when a person already has
an autoimmune disorder, such as lupus, polymyositis, scleroderma, or
rheumatoid arthritis.” (Docket 14 at p. 71).
objective evidence of functional impairment is insufficient to find an
impairment severe.4 Kirby, 500 F.3d at 707. Plaintiff also asserts the decision
of the ALJ must be reversed because the Appeals Council failed to remand for
consideration at step two of her post-hearing diagnosis of fibromyalgia.5
(Docket 16 at p. 18). Ms. Christofferson argues her diagnosis of fibromyalgia,
“less than six months after the ALJ’s decision” is “new, material, and related
back to the adjudicative period” because it “was based upon ongoing extreme
chronic fatigue and generalized nonfocal pain . . . whole-body stiffness and
pain, aching and sharp, aggravated by movement, walking and standing . . .
that predated the ALJ’s decision.” Id. (referencing Docket 14 ¶ 141). Ms.
Christofferson points out she has “been on Lyrica for three years.”6 Id.
Ms. Christofferson submitted additional medical records to the Appeals
Council as part of the appeal process. (Docket 14 ¶¶ 6). The Appeals Council
applied exhibit labels to the medical records dated prior to April, 25, 2015, the
Ms. Christofferson’s chronic pain will be discussed later in this order.
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.
“Lyrica . . . is used to treat neuropathic pain and fibromyalgia.” (Docket
14 at p. 74).
date of the ALJ’s decision. Id. (referencing AR at pp. 729-810).7 The Appeals
Council concluded the medical records predating April 25, 2015, did not form a
basis for modification of the ALJ’s decision. Id. ¶ 6 (referencing AR at p. 2).
The Appeals Council did not apply exhibit labels to the medical records
dated after April 25, 2015. Id. ¶ 7 (referencing AR at pp. 9-75 and 80-134).8
The Appeals Council concluded these medical records were “about a later time.
Therefore, it does not affect the decision about whether you were disabled
beginning on or before April 24, 2015. “ Id. ¶ 7 (referencing AR at p. 2).
The Commissioner argues the “[c]ourt does not have jurisdiction to
review the Appeals Council action because [it] denied Plaintiff’s request for
review.” (Docket 18 at p. 6) (citations omitted). The Commissioner agrees the
“[c]ourt may consider new evidence as part of the record as a whole, in
determining whether substantial evidence supports the ALJ’s decision.” Id. at
p. 7 (citation omitted).
The Social Security Regulations contemplate the potential for the
submission of additional medical evidence after an ALJ’s decision.
The Appeals Council will review a case if . . . the Appeals Council
receives additional evidence that is new, material, and relates to
the period on or before the date of the hearing decision, and there
The court finds the medical records appear in the administrative record.
(AR pp. 729-819; see also, the Appeals Council’s order which marked
additional exhibits, AR at pp. 6-7). Some of these records are referenced in the
chronological entry of medical records of the JSMF. See Docket 14 ¶¶ 22-27,
29, 51-52, 55, 83 & 85-86. Because these medical records were not part of the
administrative record until the appeal process, they were not considered by the
These post-decision medical records appear in the chronology of the
JSMF. (Docket 14 ¶¶ 88-149).
is a reasonable probability that the additional evidence would
change the outcome of the decision. . . . The Appeals Council will
only consider additional evidence . . . if you show good cause. . . .
20 CFR §§ 404.970(a)(5) and (b). The court “may remand a case to have
additional evidence taken ‘but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.’ ” Hepp v. Astrue, 511
F.3d 798, 808 (8th Cir. 2008) (quoting 42 U.S.C. § 405(g)); see also Box v.
Shalala, 52 F.3d 168, 171 (8th Cir. 1995). “To be material, new evidence must
be non-cumulative, relevant, and probative of the claimant’s condition for the
time period for which benefits were denied, and there must be a reasonable
likelihood that it would have changed the Secretary’s determination.” Woolf v.
Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993). “To be ‘material,’ the evidence
must be relevant to claimant’s condition for the time period for which benefits
were denied. . . . Thus, to qualify as ‘material,’ the additional evidence must not
merely detail after-acquired conditions or post-decision deterioration of a preexisting condition.” Bergmann v. Apfel, 207 F.3d 1065, 1069-70 (8th Cir.
2000). “Good cause does not exist when the claimant had the opportunity to
obtain the new evidence before the administrative record closed but failed to do
so without providing a sufficient explanation.” Hepp, 511 F.3d at 808.
The court reviewed the medical records which were marked and
incorporated into the administrative record by the Appeals Council.9 (Docket
14 ¶¶ 22-27, 29, 51-52, 55, 83 & 85-86). The court finds these records do not
The parties have not explained why these medical records were not part
of the record before the ALJ.
provide any “new” or “non-cumulative” information which would create “a
reasonable likelihood that it would have changed the [ALJ’s] determination.”
Woolf, 3 F.3d at 1215.
The post-decision medical records are a different matter. The last
medical record predating the ALJ’s decision of April 25, 2015, is the February
17, 2015, report of Dr. Peterson. (Docket 14 ¶ 87). Dr. Peterson charted Ms.
Christofferson’s complaints: “her pain was flaring again and mid back pain was
described as burning and stabbing. . . . the left hip injection in October 2014
had provided relief until about a month ago. . . . Back symptoms were
aggravated by daily activities and all movements, and were relieved by heat,
ice, and over the counter medication. . . . [She] reported no extremity weakness
or gait disturbance.” Id. Ms. Christofferson’s list of medications that day
included: “Acetaminophen Extra Strength [2 tablets every 6 hours as needed]
. . . Alendronate10 [1 tablet weekly] . . . Alprazolam11 [1/2 to 1 tablet every
8 hours prn for extreme anxiety] . . . Bupropion12 [1 tablet daily] . . . Coreg13
“Alendronate (Fosamax), a bisphosphonate used to treat and prevent
osteoporosis.” (Docket 14 at p. 73).
“Alprazolam (Xanax), a benzodiazepine used to treat panic attacks and
. . . anxiety disorders.” (Docket 14 at p. 73).
“Bupropion (Wellbutrin), an antidepressant used to treat depression
and also to help people stop smoking.” (Docket 14 at p. 73).
“Coreg (Carvedilol), is a beta blocker used to treat heart failure and high
blood pressure.” (Docket 14 at p. 73).
[1 tablet 2 times daily] . . . Lidoderm patch14 [1 patch daily prn] . . . Losartan15
[1 tablet daily] . . . Lyrica [1 tablet daily] . . . Omeprazole16 [1 tablet 2 times
daily] . . . Tramadol17 [2 tablets 1-2 times daily prn] . . . Rizatriptan18 [1 tablet
prn, may repeat at 2 hour intervals].” (AR at p. 721).
Dr. Peterson’s physical examination disclosed “left hip tenderness,
thoracic tenderness, and right ankle lateral swelling. . . . right hip was normal,
and bilateral lower extremity sensation was good. . . . sitting root test was
negative.” Id. at 722. Dr. Peterson’s assessment included “enthesopathy [pain
and inflammation] of the left hip, sciatica, and ankle sprain.” Id. Dr. Peterson
injected Ms. Christofferson’s left hip. Id. Thoracic spine x-rays taken that day
“showed a slight increase in the moderate lower thoracic curve complex.”19
(Docket 14 ¶ 87). Dr. Peterson referred Ms. Christofferson to Dr. Robert
Woodruff at the Black Hills Orthopedic and Spine Center in Rapid City, South
“Lidoderm Patch (transdermal patch) is a local anesthetic used to
relieve the pain of post-herpetic neuralgia.” (Docket 14 at p. 74).
“Losartan (Cozaar), is an angiotensin II receptor antagonist used to
treat high blood pressure.” (Docket 14 at p. 74).
“Omeprazole (Prilosec) is a proton pump inhibitor used to treat GERD.”
(Docket 14 at p. 75).
“Tramadol (Ultram) is a narcotic medication used to relieve moderate to
moderately severe pain.” (Docket 14 at p. 75).
“Rizatriptan (Maxalt) is a SSR agonist used to treat migraine
headaches.” (Docket 14 at p. 75).
“ ‘Moderate’ scoliosis is a defined term, and a prognostic indicator. It
means a 26-to 40-degree curve and a 68 percent chance of progression.”
(Docket 14 ¶ 87 n.15).
Dakota. Id. ¶ 88. Dr. Woodruff is an orthopedic surgeon specializing in
conditions involving the back, neck and spine. Id.
Starting just 12 days after the April 25, 2015, decision of the ALJ, the
medical records amplify the severity of Ms. Christofferson’s chronic pain. On
May 7, 2015, Dr. Woodruff charted “[o]ver time her pain ha[s] become more
severe and more constant. On average, she rated her symptoms as 4/10.”
(Docket 14 ¶ 88). Her pain level “can be as bad as an 8/10.” (AR at p. 131).
“She had tried physical therapy, chiropractic, heat, ice, Lyrica, Lidocaine
patches, Tylenol, and Gabapentin,20 epidural injections, and facet injection[s].”
(Docket 14 ¶ 88). “Dr. Woodruff assessed idiopathic thoracic (primarily)
scoliosis since adolescence, which had progressed.” Id. ¶ 89.
On May 19, 2015, a physical therapist with Black Hills Physical Therapy
of Rapid City noted Ms. Christofferson’s “reported current functional
limitations: disturbed sleep, limitations with household chores, reaching
forward or up with bilateral upper extremities, maintaining a body position,
and carrying any weight.” Id. ¶¶ 93-94. “The physical therapy diagnoses were
scoliosis T-L spine, left side rib inhalation restriction, weak scapular girdle (left
greater than right), pain in left ribs and thoracic spine, and poor compliance
with exercise.” Id. ¶ 98. Subsequent physical therapy sessions showed some
improvement. Id. ¶¶ 100-03. But on June 9, 2015, her symptoms persisted.
Id. ¶ 103.
Gabapentin is the generic name for Neurontin and is often prescribed to
treat chronic nerve pain and fibromyalgia.
During a June 25, 2015, appointment with Dr. Woodruff, Ms.
Christofferson reported a “20 percent improvement after physical therapy.” Id.
¶ 106. “[S]he rated her average pain at 4 to 5/10.” Id. Dr. Woodruff’s
examination found “normal” or “negative” responses to his manipulations. Id.
On July 13, 2015, Ms. Christofferson saw Dr. Jensen, a psychiatrist,
with Black Hills Psychiatry. Id. ¶ 110. Dr. Jensen charted:
[Ms.] Christofferson reported low energy, decreased motivation,
and difficulty focusing. She had chronic insomnia that she felt
was due to pain. She stated that she used to be physically active
but had difficulty with activities due to her chronic pain. She
spent her day doing house projects but was often frustrated with
herself that it took longer than she thought it should.
Id. ¶ 111. Dr. Jensen noted the positive factors in Ms. Christofferson’s life
“included her supportive children and her interest in going back to her career.”
Id. ¶ 114. “Negative factors included her chronic pain limiting function and her
limited response to medication in the past.” Id. “Dr. Jensen diagnosed major
depressive disorder, recurrent, moderate, and anxiety state. . . . [and her]
depression was only partially resolved with Wellbutrin and recommended
augmenting this with Prozac.” Id. ¶¶ 114-15.
On July 14, 2015, the physical therapist noted “[Ms.] Christofferson was
80% better and the pinch pain at her left ribs was 40% better. . . . [Her]
[c]urrent functional limitations were disturbed sleep, anything reaching
forward or up with bilateral upper extremities, maintaining a body position,
and carrying any weight with hands or arms. She had depression. Her mental
status/cognitive function did not appear impaired. . . . She had full strength.
She had continued left hip pain, but HEP [home exercise program] had resolved
her greater trochanter symptoms. . . . She had pain into the left groin and
thigh.” Id. ¶116.
On July 22, 2015, Dr. Dietrich “administered a thoracic trigger point
injection.” Id. ¶ 117. Dr. Dietrich, a physiatrist whose specialty is pain
management, had been treating Ms. Christofferson since October 2011.
Id. ¶¶ 30-31, 36-37, 39, 45, 47, 49 & 53.
On July 29, 2015, Ms. Christofferson reported to a physician’s assistant
at Regional Health in Rapid City that she was having “a hard time sleeping at
night due to the pain in her hip, from arthritis and bursitis. . . . [She] reported
her pain at 4/10. . . . [T]he pain was chronic, aggravated by standing, lying
down, and walking.” Id. ¶ 118. Relevant to the current issues, the PA charted
Ms. Christofferson’s medical problems as “depressive disorder, . . .
hypertension, arthritis, pain in wrist, hip pain, spinal stenosis of lumbar
region, trochanteric bursitis, disorder of bone and articular cartilage, . . .
abdominal pain, current tear of lateral cartilage and/or meniscus of knee, neck
sprain, and osteoarthritis.” Id. ¶ 119.
On August 10, 2015, Dr. Jensen charted Ms. Christofferson “was in
physical therapy and was trying to decrease her pain medications.” Id. ¶ 123.
Dr. Jensen increased her Prozac and “assessed a slight improvement in [her]
mood with psychotherapy, Prozac, and decreased alcohol use.” Id.
On August 11, 2015, another physical therapist worked with Ms.
Christofferson as she reported “complaints of pain in the left hip and buttock,
anterior thigh and anterolateral lower leg.” Id. ¶ 124. Extensive manipulation
and testing was completed. Id. ¶ 128-31. The physical therapist charted that
Ms. Christofferson’s “rehabilitation potential was ‘good.’ ” Id. ¶ 131.
On September 3, 2015, Ms. Christofferson returned to PA Millis. Id.
¶ 132. PA Millis charted “tenderness of the SI joint and the left greater
trochanter. . . . active and passive left hip range of motion were normal, with
pain elicited by passive range of motion on the left. . . . The Ober’s test was
positive. . . . Abduction strength on the left was 3/5. . . . no tenderness of the
hip flexor muscles on the right, and no tenderness of the hip flexor or abductor
muscles on the left. . . . gait was normal, she did not limp, and she ambulated
without an assistive device.” Id.
On September 18, 2015, Ms. Christofferson returned to Dr. Jensen “for a
medication check.” Id. ¶ 135. Although Ms. Christofferson was pleased about
being able to do a weekend project with her son, “[s]he still reported chronic
pain.” Id. Dr. Jensen charted Ms. Christofferson as “cooperative, her eye
contact was good, her psychomotor activity was normal, her memory and
language were intact, and her insight and judgment were fair. . . . She
exhibited mild depression that was improving. . . . Her gait and station were
normal.” Id. Dr. Jensen continued Ms. Christofferson “on Prozac 30 mg. and
Wellbutrin 300 mg., as these were working well for her.” Id.
Following a steroid injection of Ms. Christofferson’s left hip two weeks
earlier, on September 23, 2015, she reported to PA Millis that she “was ‘doing
well’ and experienced 60 percent improvement after the injection . . . . Pain was
still 4/10.” Id. ¶ 134. The PA charted “her ‘Review of Symptoms’ . . . endorsed
pain with activity and rest but did not endorse muscle aches or weakness,
musculoskeletal pain, back pain, arthralgis/joint pain, localized joint stiffness,
swelling in the extremities, crepitus with movement, catching or locking.” Id.
On September 29, 2015, Ms. Christofferson reported to her physical
therapist that “she had met her physical therapy goals, and [was] feeling at
least 60 percent better. . . . [With left hip pain at] 2/10 . . . .” Id. ¶ 138. Ms.
Christofferson felt “able to return to aquatic therapy without limitation due to
left hip pain. . . . She was able to perform normal daily activities such as
cooking and cleaning without limitation due to left hip pain.” Id. She was
encouraged to continue with exercise and aquatic therapy. Id.
On October 8, 2015, Ms. Christofferson returned to Dr. Dietrich. Id.
¶ 139. In her Review of Symptoms, Dr. Dietrich charted she “did not endorse
depression, anxiety, or mood swings, musculoskeletal numbness, tingling,
warmth, swelling, burning, spasm, or weakness. . . . She endorsed diffuse neck
pain, back pain, upper extremity paresthesias, and mid thoracic pain.” Id.
Upon examination, Dr. Dietrich noted “she was alert and oriented, and she
ambulated and transitioned independently. She had diffuse tenderness in the
low back/lumbosacral region, pain in the mid thoracic region, and
paresthesias into her bilateral upper extremities, but no focal strength deficits.”
Id. The doctor’s diagnosis included “cervical, thoracic, and lumbar
degenerative disc disease, question of Sjogren’s, and chronic pain.” Id.
On October 13, 2015, Ms. Christofferson returned to Dr. Bassing, her
rheumatologist. Id. ¶ 141. Dr. Bassing charted that Ms. Christofferson
“reported constant and worsening joint pain and whole-body stiffness and pain,
which was aching and sharp, aggravated by movement, walking and standing,
and relieved by injection, mobility, and Motrin. . . . . Associated symptoms
included decreased mobility, joint tenderness, nocturnal awakening, nocturnal
pain, weakness, and stiffness.” Id. On examination, Dr. Bassing found that
she “had diffuse very chronic non-articular tenderness, even to touch; and she
had fatigue—this was fibromyalgia. . . . She had multiple tender trigger points.”
Id. ¶ 143. Quantitative data supported the doctor’s observations and
conclusion. Id. Dr. Bassing’s diagnoses included “fibromyalgia, Sicca
syndrome, primary generalized osteoarthritis, and ‘very chronic ankle
symptoms and axial spine symptoms.’ . . . Her most bothersome symptoms
continue to be extreme chronic fatigue and generalized nonfocal pain.” Id.
¶ 146. Dr. Bassing encouraged Ms. Christofferson to do routine aerobic
exercise and physical activity. Id.
On December 8, 2015, Dr. Dietrich met with Ms. Christofferson.
On examination, Dr. Dietrich noted scoliotic spine formation,
significant tenderness in thoracic spine and thoracic trigger point,
decreased hip range of motion with pain, and soft-tissue swelling
in the thoracic spine. . . . [She] was in no acute distress, her gait,
squatting, tandem gait, and Romberg test were normal, and she
was able to heel and toe walk without difficulty. . . . Her strength
testing was normal and symmetric.
She had scoliotic spine
formation with “significant tenderness in the thoracic spine and
thoracic trigger point, decreased hip range of motion, and pain
with internal greater than external range of motion.”
Id. Dr. Dietrich’s diagnosis included: “1) Chronic pain syndrome, 2) Thoracic
trigger point, 3) Hip DJD [degenerative joint disease], 4) Sjogren’s syndrome,
5) Scoliosis, and 6) Fibromyalgia.” Id. He “administered left thoracic trigger
point injections.” Id.
On December 10, 2015, Ms. Christofferson saw Dr. Woodruff for a
review of her spinal scoliosis. Id. ¶ 149. Dr. Woodruff concluded “[s]he
has quite a few problems that I do not think are related to her back.
However, I do think her left thoracic pain is related to the thoracic rib
prominence and abnormal scapulothoracic intramuscular injections.” Id.
He encouraged her to “continue with physical therapy and intramuscular
injections. . . . [And] seek treatment for her left hip pain.” Id.
The court previously focused on fibromyalgia as an impairment.
Fibromyalgia typically involves characteristics of chronic pain,
stiffness, and tenderness of muscles, tendons, and joints without
detectable inflammation. It is common for a large majority of
patients with fibromyalgia to suffer from undue fatigue and sleep
disorders. . . . 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
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. . . . 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, abdominal pain related to
irritable bowel syndrome. . . . Any of the above symptoms can
occur intermittently and in different combinations.
Cumella v. Colvin, 936 F. Supp. 2d 1120, 1126-27 (D.S.D. 2013) (internal
citations and quotation marks omitted). “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
Dr. Bassing saw Ms. Christofferson in January and March of 2014 and
then again in October 2015. (Docket 14 ¶¶ 65, 77 & 141). Initial laboratory
testing noted a “positive ANA21 . . . elevated CRP22 and ESR.23” Id. ¶ 66. Dr.
Bassing’s original conclusion was that Ms. Christofferson “likely had mild
Sjogren’s syndrome, but Sjogren’s did not explain her pain.” Id. ¶ 70. In
March 2014, Dr. Bassing charted that Ms. Christofferson “had struggled with
chronic back pain for several years, the most bothersome at the left midthoracic region, as well as chronic low back pain radiating to the left hip.” Id.
¶ 79. Then in October 2015, after considering Ms. Christofferson’s on-going
chronic pain complaints and based on the doctor’s physical examination and
observation that “[s]he had multiple tender trigger points,” Dr. Bassing
concluded her patient met the diagnostic criteria for fibromyalgia. Id. ¶ 143.
“Her most bothersome symptoms continue to be extreme chronic fatigue and
generalized nonfocal pain.” Id. ¶ 146. In December 2015, Dr. Dietrich
“The antinuclear antibody (ANA) test is used as a primary test to help
evaluate a person for autoimmune disorders that affect many tissues and
organs throughout the body (systemic) and is most often used as one of the
tests to help diagnose systemic lupus erythematosus (SLE).” (Docket 14 at
“This test identifies the presence of inflammation and monitors
response to treatment of an inflammatory disorder.” (Docket 14 at p. 73).
“ESR. The erythrocyte sedimentation rate, is done to detect the
presence of inflammation caused by one or more conditions such as infections,
tumors or autoimmune diseases; to help diagnose and monitor specific
conditions such as temporal arteritis, systemic vasculitis, polymyalgia
rheumatica, or rheumatoid arthritis.” (Docket 14 at p. 73).
modified his diagnosis to include chronic pain syndrome and fibromyalgia. Id.
Dr. Bassing, a rheumatologist, and Dr. Dietrich, a psychiatrist, as Ms.
Christofferson’s treating physicians for several years are in the best position to
observe the progressive nature of her chronic pain. The progression of
symptoms and the evolution of medical care to the ultimate diagnosis of
fibromyalgia by Drs. Bassing and Dietrich is “new,” “non-cumulative” evidence
which is “relevant” to the time period before the ALJ’s decision. Woolf, 3 F.3d
at 1215. “Fibromyalgia is an elusive diagnosis.” Tilley, 580 F.3d at 681. The
court finds good cause exists as Ms. Christofferson did not have “the
opportunity to obtain this new evidence before the administrative record
closed.” Hepp, 511 F.3d at 808.
“The additional evidence outlines the progress of [Ms. Christofferson’s]
condition from before the ALJ’s decision, culminating in” the doctors’ diagnoses
of fibromyalgia only a few months later. Bergmann, 207 F.3d at 1070. “The
evidence is new because it describes deterioration and provides, for the first
time, a conclusive [medical] determination of” fibromyalgia. Id. “It is material
because, although it involves deterioration, that deterioration occurred over the
course of [Drs. Bassing’s and Dietrich’s] treatment, specifically including the
time period before the ALJ.” Id. The failure of the Appeals Council to consider
this new, non-cumulative, material evidence constitutes reversal error. Box,
52 F.3d at 171.
These records relate back to the pre-decision era and provide a clear
explanation for Ms. Christofferson’s chronic pain. Supported by pre-decision
records, as well as those following in close proximity over the next several
months, the diagnoses by Drs. Bassing and Dietrich show Ms. Christofferson’s
impairment “significantly limits [her] physical and mental ability to do basic
work activities.” 20 CFR § 404.1520(c). The longitudinal medical records
support the conclusion Ms. Christofferson’s fibromyalgia has lasted longer than
12 months. 20 CFR § 404.1509. Her fibromyalgia constitutes a severe
impairment. 20 CFR § 404.1521.
The Commissioner argues that because the ALJ found other severe
impairments, any failure to include fibromyalgia as a severe impairment would
be harmless error. (Docket 18 at pp. 5-6). This argument is without merit.
Failure to consider a known impairment at step two is a ground for reversal.
Colhoff v. Colvin, No. CIV. 13-5002, 2014 WL 1123518, at *5 (D.S.D. Mar. 20,
The decision of the ALJ must be vacated so this new, relevant evidence
can be considered. Remand is appropriate for another reason. Failure to
identify all of a claimant’s severe impairments impacts not only the ALJ’s
credibility findings, consideration of activities of daily living, but most
importantly, a claimant’s residual functional capacity. “[F]ailure to consider
plaintiff’s limitations . . . infect[s] the ALJ’s . . . further analysis under step
four.” Spicer v. Barnhart, 64 Fed. Appx. 173, 178 (10th Cir. 2003).
Based on the above analysis, it is
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 15) is granted.
IT IS FURTHER ORDERED that the defendant’s motion to affirm the
decision of the Commissioner (Docket 17) is denied.
IT IS FURTHER ORDERED that, pursuant to sentence four of 42 U.S.C.
§ 405(g), the case is remanded to the Commissioner for rehearing consistent
with the court’s analysis.
Dated March 6, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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