Moore v. Barnhart , 114 F. App'x 983 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 19 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PATRISHA L. MOORE,
Plaintiff-Appellant,
v. No. 03-3253
(D.C. No. 00-CV-4169-JPO)
JO ANNE B. BARNHART, * (D. Kan.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT **
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Ms. Barnhart is substituted for Kenneth S. Apfel as the
appellee in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant, Patrisha L. Moore, appeals a district court order
affirming the Commissioner’s determination she is not entitled to Social Security
benefits for the period from November 30, 1994 through March 23, 1998.
We reverse and remand for further proceedings.
Plaintiff filed for Social Security Disability and Supplemental Security
Income benefits, with an amended alleged onset date of November 30, 1994.
The underlying basis for her disability claim was an automobile accident on
July 12, 1994, which resulted in severe problems with her back and neck. She
continued working part-time as a home care psychiatric aide until she reinjured
herself on November 21, 1994; the parties agree that plaintiff has not worked
since November 30.
After plaintiff’s benefits applications were denied initially and on
reconsideration, she was granted a hearing in 1996 before Administrative Law
Judge (ALJ) Bono. ALJ Bono’s 1996 decision denying benefits was affirmed by
the Appeals Council on March 23, 1998. In April of 1998, plaintiff filed new
applications for benefits, alleging a March 24, 1998 onset date. These second
-2-
applications resulted in a favorable determination in April of 1999. Aplt. App.,
Vol. II at 652. 1
Meanwhile, in May of 1998, plaintiff filed her complaint in district court
seeking review of the Commissioner’s decision denying her first claims for
benefits. In December, the Commissioner moved to remand the matter to the
agency for further proceedings because ALJ Bono had not properly evaluated
plaintiff’s alleged mental impairment, nor had he completed a Psychological
Review Technique Form in accordance with 20 C.F.R. § 404.1520a(d)
(Aplt. App., Vol. II at 468-72). The district court granted the motion, and the
Appeals Council subsequently remanded the case for a new ALJ hearing. Id.
at 474-78.
A supplemental hearing was held in June of 2000 before ALJ Reed, who
concluded plaintiff was not disabled prior to March 24, 1998. The Appeals
Council affirmed, and the district court upheld that determination.
Standard of Review
Our standard of review is well established:
We review the agency’s decision to determine whether the factual
findings are supported by substantial evidence in the record and
1
The exact basis for this award is unclear from the record. Thus we do not
know whether plaintiff was awarded benefits based on physical or mental
impairments, or a combination of both.
-3-
whether the correct legal standards were applied. Substantial
evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. However, [a] decision is not
based on substantial evidence if it is overwhelmed by other evidence
in the record or if there is a mere scintilla of evidence supporting it.
The agency’s failure to apply correct legal standards, or show us it
has done so, is also grounds for reversal. Finally, because our review
is based on the record taken as a whole, we will meticulously
examine the record in order to determine if the evidence supporting
the agency’s decision is substantial, taking into account whatever in
the record fairly detracts from its weight. However, [w]e may
neither reweigh the evidence nor substitute our discretion for that of
the [Commissioner].
Hamlin v. Barnhart , 365 F.3d 1208, 1214 (10th Cir. 2004) (quotations and
citations omitted).
Medical Evidence
The background facts are as follows. The day after the July 1994 car
accident, plaintiff was treated at the St. Francis Hospital emergency room for pain
and assessed with a hip contusion. Aplt. App., Vol. I at 133. She was next
treated by Dr. Randall McAllister on August 20, 1994, for continued complaints
of neck pain, assessed as a cervical spasm. Id. at 129. He prescribed a soft
cervical collar and physical therapy. Id. Three days later, plaintiff was placed on
light work duty because of decreased cervical range of motion, headaches, a very
guarded gait pattern, id. at 124, 127, increased lumbar lordosis, and point
tenderness in the “right upper trapezius and bilateral scalenes and suboccipital
space.” Id. at 123. He rated her pain “as a 7 on a visual analogue slide,” id. ,
-4-
and concluded that “[o]bjective findings concur with whiplash-type injuries.”
Id. at 124. When plaintiff next saw Dr. McAllister again on October 16, he noted
her continued complaints of persistent neck spasms, hip pain, left hand tingling
with diminished grip strength on the left side. Id. at 118. Plaintiff moved her
head, neck, and trunk as a unit. Id. She reported she could not look down to read
a newspaper. Id. X-rays of the hip were unremarkable, but the cervical spine
showed a loss of lordosis. Id.
From October of 1994 through March of 1995, plaintiff was treated by
Dr. David Wilson. On October 26, 1994, plaintiff reported pain in her neck that
was “constant in nature which she describe[d] as tingling, numb, and terrifying,”
id. at 146, with symptoms including “headaches, nausea, weakness, depression,
vomiting, numbness, irritability, color changes, coldness/warmth, concentration
deficits, bladder problems, bowel dysfunction, difficulty walking, and balance
disturbances.” Id. Her pain was exacerbated by standing, walking, bending,
lifting, and overhead reaching, as well as tension, weather changes, and lack of
sleep. Id. Based on his physical examination, which included a notation of
cervical range of motion at “50% of normal in all planes with discomfort with all
movement,” id. at 147, Dr. Wilson assessed “[c]hronic cervical scapular thoracic
and low back discomfort . . . most likely musculoskeletal in nature.” Id. at 148.
-5-
He continued plaintiff “on light duty with no pulling, pushing or lifting over
25 lbs.” Id.
At her November 30 examination following the reinjury to her neck,
Dr. Wilson assessed chronic pain syndrome “with cervical strain/myofascial pain
syndrome in the cervical scapular thoracic and low back region,” noting that work
was aggravating her symptomology. Id. at 142. Dr. Wilson also noted “trigger
points in the upper trap bilaterally, rhomboids bilaterally as well as quadratus
lumborum bilaterally.” Id. He excused her from work for three weeks. Id. The
work absences were subsequently extended, and she did not return to work again.
Because plaintiff did not improve, Dr. Wilson began administering a series
of trigger-point injections beginning in February of 1995. Id. at 139. Although
helpful initially for about ten days, id. at 138, the injections soon ceased to
produce a significant change in her symptomology. Id. at 135. In March he
found plaintiff had “significant trigger points in the right and left scalenes, right
and left upper trap, right upper rhomboid, lower rhomboid, brachialis on the right,
as well as bilateral quadratus lumborum and gluteus maximus.” Id. Dr. Wilson
believed that at that point he had nothing further to offer her and suggested she
consider a chronic pain program, noting that she was “not ready to return to her
previous work level.” Id.
-6-
In April of 1995 plaintiff was evaluated by the Kansas Rehabilitation
Hospital for its pain management program under which patients were expected to
attend sessions eight hours a day for a minimum of three weeks at a minimum
cost of $6900. Id. at 245, 249. In completing the program evaluation form,
plaintiff listed her pain as both constant and unbearable, worsened by weather
changes, nearly all physical activity, concentration, sleep loss, tension, and
anxiety. Id. at 237. Her pain was “slightly less” after long hours of bed rest,
dulled somewhat by heat and ice, and temporarily soothed by hot baths. She
listed being “depress[ed] [be]cause I can’t join activities I use[d] to share [with]
my friends,” making her irritable and short-tempered, id. at 242, and stated she
was “unable to concentrate to do any work.” Id. at 243. Plaintiff did not pursue
this program, however, apparently because of the cost.
During May of 1995, plaintiff was treated at the Gage Chiropractic Clinic,
reporting headaches, pain in her shoulders, back, hips, knees and neck. Id. at 153.
Her subjective listings of pain for headaches, neck, hip and pelvic areas were
rated as “substantial” or “severe.” Id. at 176. Objective notations of spinal
motion rated her “poor” for neck and back motion. Id. at 177. In addition to
multiple and constant pains, she also reported numbness, tingling, weakness,
and dizziness. Id. She further indicated that therapies she had tried had included
-7-
ice, heat, stretching, exercise, massage, and liniments, in addition to pain
medication. Id.
Plaintiff first saw Dr. Sharon McKinney on May 31, 1995. Plaintiff
reported that she could not do much, that she got headaches if she bent over, and
that bending her neck produced migraines, caused her eyes to get fuzzy and hurt
her back. Id. at 172. Her hips hurt if she walked more than twenty minutes.
Plaintiff mentioned her referral to the pain management program, but stated that
there was “not enough insurance money left to cover this.” Id. On examination,
Dr. McKinney noted that plaintiff had all eighteen classic trigger points for
fibromyalgia, which Dr. McKinney concluded had resulted from the July 1994
motor vehicle accident. Id. at 169. Dr. McKinney recommended a “fibromyalgia
management sort of program,” instead of one for chronic pain, along with
stretching, extensive heat, and continued use of medications. Id. at 168-69.
Plaintiff returned to Dr. McKinney in June with worse headaches. Id.
at 171. Physical findings showed little change. Id. In July, Dr. McKinney noted
plaintiff’s neck was still mildly limited and numerous trigger points were still
present. Id. at 170. She advised plaintiff to use heat more aggressively and to
continue with exercises. Id.
In August of 1995, Dr. McKinney again noted all eighteen classic trigger
points for fibromyalgia. Id. at 167. Plaintiff reported general all over aching,
-8-
earaches, and headaches. Id. Dr. McKinney stated that the only type of activity
plaintiff could do at this point was “very light sedentary non-repetitive
non-stressful activity for 1 to 2 hours at the most” and that plaintiff was
“substantially limited in employment for at least 90 days.” Id. At her next visit
(date unclear), plaintiff’s trigger points were “still ‘hot.’” Dr. McKinney noted
that plaintiff was becoming deconditioned, a problem “common with
fibromyalgia.” Id. at 166. On October 17, Dr. McKinney noted plaintiff still had
trigger points in the “neck, shoulder girdle muscles and pelvic girdle muscles.”
Id. at 164. Plaintiff reported being forgetful and “not always on track,” not
sleeping well, able to do a few dishes and a little laundry, but requiring frequent
rest breaks and having more pain. Id.
In an October 23 letter recapping plaintiff’s medical situation,
Dr. McKinney stated that although fibromyalgia is not life threatening, it “can
make one’s life miserable.” Id. at 165. She noted that the disorder generally
requires medications and is “notorious for remissions and exacerbations.” Id.
In November, plaintiff reported increased pain with the wintery weather. Id.
at 162. Plaintiff also stated she had tried to get a job but would get one and then
become sick and unable to work. Id.
In March of 1996, Dr. McKinney determined plaintiff was at maximum
medical improvement. Id. at 200. By then plaintiff’s pain had “‘spread all over’”
-9-
and she had all the trigger points. Because of pain plaintiff had a mild decrease
in her shoulder range of motion and hip girdles. Id. Dr. McKinney noted
plaintiff was unable to “tolerate stressful situations . . . or to do heavy work or
any repetitive work.” Id. In July of 1996, plaintiff saw Dr. Engelken, reporting
that she had not made much progress with her fibromyalgia and that stress and
noise made her symptoms worse. Id. at 261.
In August, plaintiff was seen by Dr. McAllister in the emergency room with
increased pain in her neck and shoulders. Id. at 273. That same month
Dr. McKinney completed a fibromyalgia residual functional capacity (RFC)
questionnaire indicating that while plaintiff’s prognosis for life was good, her
prognosis for normal functioning was poor. Id. at 264-65. Dr. McKinney stated
that plaintiff was not malingering, her impairments had lasted or could be
expected to last at least twelve months, and that her symptoms included multiple
tender points, nonrestorative sleep, chronic fatigue, morning stiffness, numbness
and tingling, muscle weakness, subjective swelling and depression. Id. at 264-65.
Pain was precipitated by weather changes, cold, fatigue, hormone changes,
movement/overuse, stress and static positioning. Id. at 266. Dr. McKinney stated
that plaintiff’s symptoms were severe enough to frequently interfere with
attention and concentration, and that plaintiff’s ability to deal with work stress
was markedly limited. Id. at 267.
-10-
In assessing plaintiff’s general RFC, Dr. McKinney stated plaintiff could
walk for one to two blocks, sit continuously for thirty minutes and stand for
fifteen (for a total sitting/standing/walking of less than two hours in an eight-hour
day). Id. at 267-68. Plaintiff would need to be able to walk about five minutes
every forty-five minutes, to shift positions at will and take frequent five-to-ten
minute unscheduled breaks during an eight-hour work day. Id. at 268.
Dr. McKinney further stated that plaintiff could occasionally lift and carry less
than ten pounds, could bend only two percent of the time, could not twist and was
significantly restricted in repetitive reaching, handling and fingering. Id. at 269.
Plaintiff would likely miss work more than three times a month due to her
impairment or need for treatment. Id. at 270.
Plaintiff visited the emergency room on October 7, 1996, with complaints
of pain to her neck, back, knees, and arms. She showed multiple tender areas
along her lower cervical spine. Id. at 335. On October 28, 1996, Dr. McKinney
reported that plaintiff was doing her exercises and taking hot baths along with her
medications. The physical examination indicated plaintiff had all eighteen trigger
points, although it was “somewhat difficult to assess [plaintiff’s] function
otherwise as she is not always consistent in the exam.” Id. at 331. Dr. McKinney
further reported that plaintiff was “having great difficulty dealing with [the
fibromyalgia] and is quite limited in her ability to function because of it.” Id.
-11-
There is no suggestion that plaintiff was imagining or exaggerating her symptoms.
In November of 1996, laboratory tests were ordered to rule out other possible
medical problems such as lupus and rheumatoid arthritis. Id. at 338-41.
Dr. McKinney further noted that plaintiff’s fibromyalgia was not a curable
disorder. Aplt. App., Vol. II at 480.
In December of 1996, plaintiff complained of muscle twitching, pain and
stiffness in her knees, and depression (she noted she did not want antidepressant
medication and would go to a support group instead). Trigger points were still
present, and her range of motion was still functional. Id. at 543. At some point,
Dr. McKinney signed a form Kansas Certificate of Disability stating that plaintiff
was unable to perform substantial gainful activity for the entire year of 1996
based on her disability due to “severe fibromyalgia,” accompanied by “fatigue[,]
muscle spasms[,] depression[,] and migraines.” Id. at 546.
In July of 1997, plaintiff reported new problems, including hand pain and
more numbness and tingling in her right arm, and a general decrease in activity.
Id. at 540. Also in July and August of 1997, plaintiff was evaluated for cervical
and shoulder problems. She received exercises to perform. Id. at 498-514. With
a primary diagnosis of cervical pain, id. at 500, she was experiencing throbbing,
pounding headaches, id. , pulling in her neck, id. , pain with cervical flexion and
extension, id. at 501, and moderate pain response with palpitation, id. Her pain
-12-
was better with water, heat, medication, and massage, but worse with stress and
bending her head. Id. at 503.
In September of 1997, plaintiff reported problems with muscle spasms,
mainly on her left side with some numbness and tingling. Id. at 539.
Dr. McKinney noted plaintiff was very tender around her post hip girdle muscles
and exhibited poor hip extension. Id. In that same month, Dr. McKinney’s
treatment notes reflect that plaintiff’s knees felt like rubber sometimes and her
right hand tingled. Id. at 538. Plaintiff reported doing limited household chores
and taking baths three times a day. Id. Trigger points were still present. Id.
In April of 1998, plaintiff again saw Dr. Engelken, reporting that she was
experiencing “occasional chest pain that is fairly sharp,” which she associated
with activity, and which radiated down her left arm, causing some numbness.
Id. at 517. Dr. Engelken thought plaintiff’s chest pain was likely anxiety related,
but ordered a treadmill test to rule out underlying cardiac disease. Id. at 516-17.
In September of 1998, Dr. McKinney completed a medical statement form
listing a diagnosis of “significant fibromyalgia [and] depression” associated with
decreased sleep, which prevented gainful employment, was expected to last
twelve months or longer, and could not be controlled in that time frame by
medication, surgery, or other treatment. Id. at 535-37. In December of 1998,
Dr. McKinney recommended plaintiff take antidepressants. Id. at 534.
-13-
Shortly after plaintiff filed her second applications for disability benefits in
April of 1998, she was evaluated by two consultative doctors. In July of 1998,
Dr. Charles Fantz, Ph.D., diagnosed her as having major depression with, among
other issues, depressed mood, lowered pleasure and interest in activities,
significant weight gain, insomnia, fatigue, feelings of worthlessness, difficulties
with concentration, and continual suicide ideation. Id. at 530. He described her
behavior as “consistent with her self report of severe depression.” Dr. Fantz
believed plaintiff was “not able to work at the present time.” Id. In August of
1998, Dr. Joseph Sankoorikal also observed the possibility of depression. Id.
at 533. He further noted that she complained “of a lot of pain” and had sleep
problems. Id. at 532-33. In addition, the record contains numerous later records
of medical visits and prescription refills.
Appellate Issues
On appeal, plaintiff argues, as she did in district court, that the ALJ
(1) improperly weighed Dr. McKinney’s opinions, (2) improperly analyzed her
fibromyalgia, (3) failed to support his psychiatric review technique form by
substantial evidence (i.e., plaintiff argues that, with regard to her mental
impairments, she satisfied the criteria to meet or equal Listing 12.04 of 20 C.F.R.
Pt. 404, Subpart P, App. 1), and (4) failed to apply proper legal standards when
evaluating her subjective complaints of pain. Aplt. Br. at i.
-14-
Discussion
A. Mental Impairment
We first address plaintiff’s claim that her mental impairment met Listing
12.04. To establish disability based on meeting the requirements of the listed
impairment for affective disorders (§ 12.04), plaintiff must show evidence
satisfying all listed requirements; to meet the “A” criteria she was required to
show medically documented persistence (continuous or intermittent) of (in
plaintiff’s case) depressive syndrome. See 20 C.F.R., Pt. 404, Subpt. P, App. 1,
§ 12.04(A)(1). To show depressive syndrome requires at least four of the
following: anhedonia or pervasive loss of interest in nearly all activities; appetite
disturbance with change in weight; sleep disturbance; psychomotor agitation or
retardation; decreased energy; feelings of guilt or worthlessness; difficulty with
concentration or thinking; thoughts of suicide; or hallucinations, delusions, or
paranoid thinking, id. The ALJ determined that the evidence supported three of
these factors: sleep disturbance, psychomotor agitation and difficulty
concentrating or thinking. Aplt. App., Vol. II at 458.
In addition, plaintiff must show at least two of the following under the “B”
criteria: a limitation degree of “marked,” in the categories of restrictions of
activities of daily living, difficulties in maintaining social functioning, or
difficulties in maintaining concentration, or a showing of repeated episodes of
-15-
deterioration or decompensation in a worklike setting. 20 C.F.R., Pt. 404,
Subpt. P, App. 1, § 12.04(B). The ALJ rated plaintiff’s restrictions in these areas
as “slight,” as to restrictions on daily living and maintaining social functioning,
“seldom” as to concentration deficiencies, and “never” having episodes of
deterioration or decompensation. Aplt. App., Vol. II at 462.
The ALJ reviewed the evidence prior to the March 24, 1998, date plaintiff
previously was found to be disabled and determined that plaintiff’s limitations
due to depression before March of 1998 were less than the moderate restrictions
the record showed after June of 1998. Contrary to plaintiff’s assertion, the ALJ
did not rely on Dr. Fantz’s report in support of a conclusion that “[p]laintiff’s
depression initially manifested itself on March 23, 1998.” Aplt. Br. at 38.
Rather, the ALJ acknowledged that in June of 1998 Dr. Fantz diagnosed plaintiff
with major depression and that the evidence reflected that plaintiff “currently has
a mental impairment that could reasonably be expected to produce the alleged
work-related limitations.” Aplt. App., Vol. II at 450. The bottom line, however,
was that there were no “clinical signs or laboratory findings of any significant
mental impairment that could reasonably be expected to produce disabling
symptoms prior to March 24, 1998.” Id. (emphasis added). Plaintiff’s references
to other statements she made prior to March 24, 1998, likewise do not establish a
significant mental impairment of disabling proportions. See Aplt. Br. at 39-40.
-16-
In sum, the ALJ’s determination reflects he considered all the evidence of
mental impairment even if he did not refer to each piece of it. See Clifton v.
Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996). We hold that substantial
evidence supports the ALJ’s finding that plaintiff did not have a disabling mental
impairment during the period prior to March 24, 1998.
B. Remaining Arguments
Plaintiff’s remaining arguments–that the ALJ failed to properly consider
her symptoms of fibromyalgia, the opinions of her treating physician, and her
credibility–are all related. We conclude, based on our review of the record, that
because the ALJ did not accurately perceive the nature of plaintiff’s fibromyalgia,
he erroneously failed to properly consider both the treating physician’s opinions
and plaintiff’s statements regarding her symptoms. Critically, moreover, he did
not specify what weight he did give Dr. McKinney’s opinions, further impeding
our review. This was error.
1. Fibromyalgia
The ALJ recognized plaintiff’s diagnosis of fibromyalgia, 2
but seemed to
require that it be established by a formalistic clinical or laboratory test. See, e.g. ,
2
Although he twice referred to this as having first been diagnosed in 1996,
see Aplt. App., Vol. II at 450-51, plaintiff was in fact so diagnosed by
Dr. McKinney in May of 1995. Aplt. App., Vol. I at 169. In addition, plaintiff
was treated for trigger points even before that.
-17-
“laboratory testing is not consistent with an impairment or combination of
impairments . . . reasonably expected to produce severe and intractable pain
[before] . . . March 24, 1998,” Aplt. App., Vol. II at 445; “no laboratory test has
been consistent with . . . impairments . . . expected to cause the level of disability
alleged by [plaintiff],” id. at 446, “the clinical signs are not consistent with . . .
impairments . . . reasonably . . . expected to cause the level of pain alleged by the
[plaintiff].” Id. The ALJ stated that Dr. McKinney’s opinions on plaintiff’s
limitations appeared to be based “more on [plaintiff’s] subjective complaints and
the diagnosis of fibromyalgia than on any clinical signs or laboratory findings,”
id. at 448. In addition to being speculative inferences from medical reports that
an ALJ may not make, see McGoffin v. Barnhart , 288 F.3d 1248, 1252 (10th Cir.
2002), these examples reflect the ALJ’s fundamental misperception of the nature
of fibromyalgia.
Fibromyalgia, previously called fibrositis, is “a rheumatic disease that
causes inflammation of the fibrous connective tissue components of muscles,
tendons, ligaments and other tissue.” Benecke v. Barnhart , 379 F.3d 587, 589
(9th Cir. 2004). It is a chronic condition, causing “long-term but variable levels
of muscle and joint pain, stiffness and fatigue.” Brosnahan v. Barnhart , 336 F.3d
671, 672 n.1 (8th Cir. 2003). The disease is “poorly-understood within much of
the medical community [and] . . . is diagnosed entirely on the basis of patients’
-18-
reports and other symptoms.” Benecke , 379 F.3d at 590. Clinical signs and
symptoms supporting a diagnosis of fibromyalgia under the American College
of Rheumatology Guidelines include “primarily widespread pain in all four
quadrants of the body and at least 11 of the 18 specified tender points on the
body.” Green-Younger v. Barnhart , 335 F.3d 99, 107 (2d Cir. 2003); see also
Brosnahan , 336 F.3d at 678 (objective medical evidence of fibromyalgia includes
consistent trigger-point findings). Fibromyalgia can be disabling. Kelley v.
Callahan , 133 F.3d 583, 589 (8th Cir. 1998).
As described by the Seventh Circuit:
Its cause or causes are unknown, there is no cure, and, of greatest
importance to disability law, its symptoms are entirely subjective.
There are no laboratory tests for the presence or severity of
fibromyalgia. The principal symptoms are “pain all over,” fatigue,
disturbed sleep, stiffness, and–the only symptom that discriminates
between it and other diseases of a rheumatic character–multiple
tender spots, more precisely 18 fixed locations on the body (and the
rule of thumb is that the patient must have at least 11 of them to be
diagnosed as having fibromyalgia) that when pressed firmly cause the
patient to flinch.
Sarchet v. Chater , 78 F.3d 305, 306 (7th Cir. 1996) (emphasis added).
The ALJ noted that Dr. McKinney had not listed swelling as one of
plaintiff’s symptoms. Aplt. App., Vol. II at 446. 3
But joint swelling is not a
3
This is not entirely accurate. In completing the fibromyalgia RFC
questionnaire in August of 1996, Dr. McKinney did list “subjective swelling” as
one of plaintiff’s symptoms. Aplt. App., Vol. I at 265.
-19-
symptom of fibromyalgia, and its absence is therefore no indication that
plaintiff’s condition is not disabling. Sarchet, 78 F.3d at 306. Indeed, it is the
absence of symptoms ordinarily associated with joint and muscle pain that is one
of the most striking aspects of this disease:
Patients with FMS [(fibromyalgia) syndrome] usually look healthy.
Their joints appear normal, and further musculoskeletal examination
indicates no objective joint swelling, although there may be
tenderness on palpation. In addition, muscle strength, sensory
functions, and reflexes are normal despite the patient’s complaints of
acral numbness.
The most striking and unique finding in FMS is the presence of
multiple tender points. Blind studies have established that these
tender points are both quantitatively and qualitatively different from
those observed in healthy persons and in those with other chronic
pain conditions . . . . Patients with FMS not only hurt more, but they
also hurt in many more places than other patients.
Muhammad B. Yunus, Fibromyalgia syndrome: blueprint for a
reliable diagnosis , Consultant, June 1996 at 1260.
Rollins v. Massanari , 261 F.3d 853, 863 (9th Cir. 2001) (Ferguson, J., dissenting).
In a case with strikingly similar underlying facts, the Second Circuit
concluded that the ALJ either “did not actually credit the [treating physician’s]
diagnosis of fibromyalgia or misunderstood its nature.” Green-Younger , 335 F.3d
at 108. Thus the ALJ erred in effectively “requir[ing] ‘objective’ evidence for a
disease that eludes such measurement.” Id. The court further noted that “[a]s a
general matter, ‘objective’ findings are not required in order to find that an
applicant is disabled.” Id.-20-
Here, the ALJ mentioned the finding of trigger points beginning in
November of 1994, as well as plaintiff’s treatment with trigger point injections,
Aplt. App., Vol. II at 446, but seemed to attach little or no significance to these
findings and treatment. Instead, he noted that plaintiff had not attended a pain
clinic, 4 work hardening program or behavior modification program. Id. To this
court it appears the ALJ did not fully understand the nature of plaintiff’s
diagnosed condition. 5
consequently, the ALJ did not properly analyze
Dr. McKinney’s opinions.
2. Treating Physicians’ Opinions
The ALJ referred to Drs. McAllister and Wilson as treating physicians,
Aplt. App., Vol. II at 447, noting that neither had felt that plaintiff “was totally
prevented from employment.” The restrictions and observances of those doctors,
as described by the ALJ, generally occurred prior to plaintiff’s November 30,
4
While acknowledging that plaintiff’s reason for not doing so may have been
financial, the ALJ noted plaintiff obtained a $10,000 judgment from the City of
Topeka because of her automobile accident in 1994. Aplt. App., Vol. II at 446
n.3. He makes no mention of whether she in fact received all of those funds, nor
did he note the nearly $7,000 cost of attending the Kansas Rehabilitation
Hospital’s pain clinic. See Aplt. App., Vol. I at 249. This apparent inference that
plaintiff had available resources with which to pursue other avenues for pain
relief is thus pure speculation.
5
Moreover, we have held (in assessing chronic fatigue syndrome (CFS))
that the cases do not suggest that “[CFS]–or any other disease–is per se excluded
from coverage because it cannot be conclusively diagnosed in a laboratory
setting.” Sisco v. United States Dep’t of Health & Human Servs. , 10 F.3d 739,
744 (10th Cir. 1993).
-21-
1994, alleged onset date. 6
In addition, the fact that neither Dr. Wilson nor
Dr. McAllister specifically thought plaintiff was unemployable in 1994 or 1995,
does not necessarily mean she did not become so at some time prior to March
of 1998.
In addition, the ALJ stated that Dr. Wilson found 6 of 18 positive trigger
points in November and December of 1994, but no specific ones in plaintiff’s
thighs in January of 1995. Aplt. App., Vol. II at 446. Not mentioned by the ALJ,
however, were the additional “significant trigger points” in the various other areas
Dr. Wilson found at that same January examination, Aplt. App., Vol. I at 140, or
his March 1995 finding of significant trigger points “in the right and left scalenes,
right and left upper trapezoids, right upper rhomboid, lower rhomboid, brachialis
on the right as well as bilateral quadratus lumborum and gluteous medius.” Id.
at 135.
In assessing Dr. McKinney’s numerous opinions and reports, the ALJ did
not expressly state whether he treated her as a treating physician. More
importantly, however he did not relate what weight he did give her opinions. This
was error. The ALJ must first determine whether a treating source’s opinion is
6
Indeed, one of the ALJ’s citations to “Dr. Wilson’s references [to] ‘light
duty’ work” included his taking her off work for three weeks beginning
November 30, 1994, Aplt. App., Vol. I at 142, which status was continued
through the end of January of 1995. Id. at 140-41.
-22-
entitled to controlling weight. Langley v. Barnhart , 373 F.3d 1116, 1119
(10th Cir. 2004). This determination, in turn, hinges on whether the opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques.” Id. (quotations omitted). However, even if a treating source’s
opinion is not entitled to controlling weight, it is still entitled to deference and
must be properly evaluated. See Langley , 373 F.3d at 1119 (listing factors for
evaluation as outlined in 20 C.F.R. § 404.1527). The ALJ must also supply good
reasons for the weight he assigns to a treating physician’s opinion, and if he
rejects entirely that opinion, must provide specific, legitimate reasons for that
rejection. See Watkins v. Barnhart , 350 F.3d 1297, 1300-01 (10th Cir. 2003).
These are the steps the ALJ neglected to follow in analyzing Dr. McKinney’s
reports and opinions.
For example, he described Dr. McKinney’s March 1996 opinions as
“contradictory.” Aplt. App., Vol. II at 448. Given that the purposes of the two
reports do not appear to be the same, we disagree. In addition to noting plaintiff
was unable to tolerate stressful situations or to perform heavy or repetitive work,
Dr. McKinney’s March 11 opinion also related plaintiff’s complaints of
“increased pain [which plaintiff said had] ‘spread all over.’” Aplt. App., Vol. I
at 200. Dr. McKinney found plaintiff had “all her trigger points” with “a mild
decrease in range of motion in the shoulders and hip girdle due to her pain,” id. ,
-23-
and further stated that plaintiff was at “maximum medical” improvement. The
March 24 report, however, was a Request for Medical Statement questionnaire,
listing some fifty-nine specific medical conditions with a place to explain
“unlisted or combination impairments.” Id. at 195-99. In completing her
response, Dr. McKinney stated that plaintiff “has significant fibromyalgia which
prevents sig[nificant] employment [and] will last the rest of her life unless
medicine comes up with a cure.” Id. at 198. Dr. McKinney reported that this was
“intractable (sic) painful despite tx,” an opinion she had issued on at least one
other occasion as well. See id. at 286. We fail to see any contradictions in these
two opinions.
The ALJ further acknowledged that Dr. McKinney had stated plaintiff was
“not a malingerer,” but then stated that “Dr. McKinney also admits there are
inconsistencies in [plaintiff’s] performance,” which the ALJ found “significant
when one also notes a suggestion of inconsistency observe[d] by
Dr. Sankoorikal.” Id. at 448. But Dr. Sankoorikal, a consulting physician,
examined plaintiff only one time in August of 1998. Moreover, he did not state
that he observed “inconsistencies,” but only that he could not tell whether some of
the examination results were based on pain as the limiting factor or because
plaintiff was not applying a full effort. Id. at 532. Nonetheless, he did not
suggest plaintiff was malingering or exaggerating her symptoms, either. To this
-24-
extent, too, the ALJ appears to have overlooked our requirement that “when a
treating physician’s opinion is inconsistent with other medical evidence, the
ALJ’s task is to examine the other physicians’ reports to see if they outweigh the
treating physician’s report, not the other way around.” Hamlin , 365 F.3d at 1215(further quotation omitted).
The ALJ also mischaracterized what Dr. McKinney reported, stating that
“[i]n August 1995, the physician opined that the claimant could possibly due (sic)
part-time, ‘very sedentary non-repetitive non-stressful activity,’” Aplt. App.,
Vol. II at 447, when in fact Dr. McKinney’s impression, on physical examination,
was that “[a]t this point the only kind of activity [plaintiff] can do would be very
light sedentary non-repetitive non-stressful activity for 1 to 2 hours at the most .”
(emphasis added). Aplt. App., Vol. I at 167. We have long held that the ALJ
may not “pick and choose which aspects of an uncontradicted medical opinion to
believe, relying on only those parts favorable to a finding of nondisability.”
Hamlin , 365 F.3d at 1219. Accord, Robinson v. Barnhart , 366 F.3d 1078, 1083
(10th Cir. 2004).
Finally, we have noted that the ALJ suggested numerous procedures and
“treatments” that plaintiff did not undergo ( e.g. , work hardening program, back
brace, TENS unit, MRI, CT Scan, surgery, see id. at 446-47), without any
corresponding determination that any of these were ever medically prescribed or
-25-
would have achieved a better diagnosis or relief from pain. The ALJ, however, is
simply “not free to substitute his own medical opinion for that of a disability
claimant’s treating doctors.” Hamlin , 365 F.3d at 1221.
Because the ALJ did not follow the proper legal standards in evaluating
Dr. McKinney’s opinions, his decision that plaintiff was not disabled at any time
between her alleged onset date of November 30, 1994, and the March 24, 1998,
disability determination date, is not supported by substantial evidence. On
remand, the ALJ should follow the analysis we set forth in Langley , 373 F.3d
at 1119 and Watkins , 350 F.3d at 1300-01.
3. Plaintiff’s Pain Allegations
Likewise, the ALJ did not properly consider plaintiff’s allegations of pain.
Although he accepted her testimony regarding pain from both the 1996 and 2000
hearings, Aplt. App., Vol. II at 445, and recited the appropriate factors to
consider, see Luna v. Bowen , 834 F.2d 161, 164-66 (10th Cir. 1987), he
discounted her allegations of “severe and intractable pain” because laboratory
testing was “not consistent with an impairment . . . that could reasonably be
expected to produce” such severe pain. Aplt. App., Vol. II at 445. But two of the
“laboratory tests” he mentioned predate both her disability onset date and the
second injury that precipitated her being unable to work, id. , and one is from the
period after the Secretary had found her disability began. Id. at 446. The ALJ
-26-
acknowledged, in passing, the testimony of plaintiff’s housemate corroborating
her pain testimony but apparently attached no weight to it, for reasons not readily
apparent. Id. at 445. As noted, the ALJ recognized that Drs. Wilson and
McKinney elicited positive trigger points, and that plaintiff underwent trigger
point injections and physical injections. Id. at 446. Again, however, the ALJ
focused his disbelief of plaintiff’s pain claims on the lack of “clinical signs.” Id.
As we earlier noted, fibromyalgia is a condition that is simply not amenable to
such clinical determination. See, e.g., Tennant v. Apfel , 224 F.3d 869, 870 n.2
(8th Cir. 2000) (“Fibromyalgia . . . [causes] muscle and joint pain, stiffness, and
fatigue [and] . . . there are no specific diagnostic tests for this affliction.”). On
remand the ALJ must follow the proper legal standards for evaluation of
plaintiff’s pain testimony, see SSR 96-7p, 1996 WL 374186 (July 2, 1996), and
must “closely and affirmatively link[ ] [his findings] to substantial evidence.”
Hardman v. Barnhart , 362 F.3d 676, 679 (10th Cir. 2004) (quotation omitted).
In so doing, the ALJ should further evaluate the evidence of plaintiff’s repeated
attempts to seek medical relief for her pain, the numerous medications she has
taken 7 and her various other attempts to alleviate the pain. See id. at 679-80.
7
The ALJ acknowledged that plaintiff “takes several prescription
anti-inflammatory, anti-pain, and muscle-relaxant medications.” Aplt. App.,
Vol. II at 447. The record, however, indicates numerous and continuous
prescriptions over the course of plaintiff’s treatment since her 1994 injuries that
(continued...)
-27-
Conclusion
Accordingly, for the above reasons, the judgment of the district court is
REVERSED, and the matter is REMANDED with directions to remand to the
Secretary for further proceedings consistent with this order and judgment. Nancy
Caplinger’s motion to withdraw as counsel for appellee is granted.
Entered for the Court
Bobby R. Baldock
Circuit Judge
7
(...continued)
have included Tylenol #3, Flexeril, Toredol, Anaprox, Oruvail, Extra Strength
Motrin, Benedryl, Lortab, Klonopin, Ultram, Norflex, Relafen, Darvocet, and
Soma. See Aplt. App., Vol. I at 145, 146, 162, 164, 166, 167, 170, 200; id.at Vol. II at 316-17. This is hardly reflective of “some aches and pains” the ALJ
had “no doubt” plaintiff experienced between 1994 and 1998. Id. at 449.
-28-