Shirley Bowman v. Jo Anne Barnhart ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1497
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SHIRLEY BOWMAN, *
*
Plaintiff - Appellant, *
*
vs. * Appeal from the United
* States District Court
JO ANNE B. BARNHART, * for the Eastern District
Commissioner, Social Security * of Arkansas.
Administration, *
*
Defendant - Appellee. *
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Submitted: September 13, 2002
Filed: November 20, 2002
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Before McMILLIAN, and MORRIS S. ARNOLD, Circuit Judges, and BOGUE,1
District Judge.
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BOGUE, District Judge.
1
The Honorable Andrew W. Bogue, United States Senior District Judge for the
District of South Dakota, sitting by designation.
Shirley Bowman appeals from a judgment of the district court2 affirming a final
decision of the Commissioner of the Social Security Administration denying social
security disability benefits. We reverse and remand for further proceedings.
BACKGROUND
Bowman was born in 1945, has a GED, and last worked in 1995 as an office
clerk. She alleges a disability onset date in June 1998. The medical evidence is as
follows. In June 1997, Bowman was admitted to the hospital for back pain. Hospital
notes indicate that she was being treated by Dr. Hermie Plunk. X-ray and bone scan
examinations revealed compression fractures of her thoracic spine. Dr. Plunk's office
notes from June 1997 to August 1999 have over 97 entries indicating treatment for
systemic and discoid lupus, high blood pressure, hypothroidism, chronic back pain,
anxiety, and depression. Although some of the entries are for office visits, other
entries reflect telephone calls for prescription refills, especially for pain medications
and muscle relaxants. An April 1999 spine scan showed thoracic and lumbar
scoliosis and multiple compression fractures of the thoracic spine.
In November 1999, Bowman saw Dr. Edward Cooper, an orthopedic surgeon.
Dr. Cooper noted that Bowman was "humped over" and had pain from kyphosis
(curvature of the thoracic spine). X-ray and MRI examinations showed multiple
compression fractures of the thoracic spine with a loss of body height, kyphosis, and
low bone density (osteoporosis). Dr. Cooper noted that as long as Bowman had
osteoporosis, she would continue to have micro-compression fractures and back pain.
He explained that although Bowman had periods of relief from back pain, a minor
trauma could cause the pain to reoccur, noting she had reported pain on sneezing. Dr.
Cooper referred Bowman back to Dr. Plunk for treatment.
2
The Honorable Henry Jones Jr., United States District Judge for the Eastern
District of Arkansas.
2
In a December 1999 letter, Dr. Plunk stated that she had treated Bowman for
thirty years and that Bowman had constant pain and limited mobility due to systemic
and discoid lupus, osteoarthritis, and multiple compression fractures of the thoracic
spine. In addition, the doctor noted that Bowman had general anxiety and situational
depression. Dr. Plunk listed Bowman's current medications, which included Xanax,
Plaquenil, Oxycontin, and Skelaxin, noting Bowman would continue to be monitored
with blood tests, x-rays, and monthly physical evaluations.
In May 2000, Bowman testified before an administrative law judge (ALJ).
Bowman stated she had been laid off from her job in 1995 and drew unemployment
compensation. She acknowledged that in a previous application for disability
insurance benefits, she alleged a disability onset at the time of lay-off, explaining at
that time she believed she could not work because her lupus had worsened. She
testified she could not return to her past work as an office clerk, asserting she could
not sit for prolonged periods because of pain and stiffness in her back and swelling
in her elbow, legs, and ankles. She claimed after sitting for an hour and a half, she
had to lie down, usually with a heating pad. Although she noted she did not know
how to explain her pain, Bowman stated if she did not "catch a sneeze" or coughed
"hard" something "popped." Bowman stated she no longer drove or did housework,
and spent much of her day lying down or watching television. Bowman stated that
she was taking Paxil for her depression, but it was not as effective as another anti-
depressant, which she had to stop because of side effects. She also stated she
probably had side effects from other medications, but because she took so many, she
could not identify them. Bowman's daughter corroborated her mother's testimony of
severely restricted daily activities.
In response to the ALJ's hypothetical question, a vocational expert (VE)
testified that if Bowman suffered from mild to moderate pain which was treated with
medication, depression that was controlled with medication, and could sit for one to
two hours without interruption, she could return to her past work. However, the VE
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testified that if Bowman had chronic moderate to severe pain that effected her
concentration, she would be unable to work.
The ALJ concluded that Bowman was not disabled because she could return
to her former work as an office clerk, finding that her allegations of disabling pain
were not credible. Among other things, the ALJ noted that Bowman had stopped
working in 1995 because of a lay-off, not because of pain, and that the medical
evidence showed no significant deterioration of her condition since 1995. In
particular, the ALJ noted a 1998 entry in Dr. Plunk's office notes indicated Bowman's
lupus was controlled with medication. The ALJ also believed the evidence showed
that Bowman had a good response to conservative treatment of her spinal
compression fractures, noting she had not had surgery. The ALJ found the testimony
by her daughter unpersuasive since it was based on acceptance of Bowman's
allegations of disabling pain. After the Appeals Council denied review, Bowman
filed suit. The district court upheld the ALJ's decision.
DISCUSSION
"We review de novo a district court decision upholding the denial of social
security benefits." Lauer v. Apfel, 245 F.3d 700, 702 (8th Cir. 2001). "We will affirm
the ALJ's findings if they are supported by substantial evidence on the record as a
whole." Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998). "However, the review
we undertake is more than an examination of the record for the existence of
substantial evidence in support of the Commissioner's decision[;] we also take into
account whatever in the record fairly detracts from that decision." Id. We note that
even if a claimant is represented by counsel, "[t]he ALJ has a duty to develop the
facts fully and fairly." Id. at 1209.
On appeal, Bowman argues that the ALJ erred in discounting her allegations
of disabling pain. We agree. In analyzing Bowman's allegations of disabling pain,
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the ALJ was required to consider the medical evidence, her "prior work history; daily
activities; duration, frequency and intensity of pain; dosage, effectiveness and side
effects of medication; precipitating and aggravating factors; and functional
restrictions." Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998) (citing Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
It is undisputed that Bowman has several impairments, such as systemic lupus,
compression fractures of the spine, kyphosis, which alone or in combination, could
cause chronic pain. As to the intensity of her pain, the ALJ found that the evidence
showed that she had only mild to moderate pain. The medical evidence does not
support the ALJ's finding. Among other things, in an attempt to alleviate Bowman's
pain, Dr. Plunk prescribed Vicodin, Skelaxin, and Oxycontin. Vicodin is a narcotic
prescribed "for the relief of moderate to moderately severe pain." Physicians' Desk
Reference (PDR) 516 ( 5th ed. 2002). Skelaxin is a muscle relaxant prescribed for
"acute, painful muscoskeletal conditions." Id. at 1304. Oxycontin is prescribed for
"the management of moderate to severe pain when a continuous, around the clock
analgesic is needed for an extended period of time." Id. at 2913.
Nor is there evidence that the medications alleviated her pain, swelling, and
depression to the point where she could return to her previous job as an office clerk.
In finding that Bowman's lupus was controlled by medication, the ALJ relied on a
1998 entry in Dr. Plunk's notes. However, that one notation is not substantial
evidence that Bowman's systemic lupus was controlled at all times during her insured
status. Systemic lupus is "a chronic, remitting, relapsing, inflammatory, and often
febrile multisystemic disorder of connective tissue." Kelley v. Callahan, 133 F.3d
583, 585 n.1 (8th Cir. 1998) (internal quotation omitted). In other words, the
symptoms of systemic lupus, such as pain and swelling, can flare-up, subside, and
flare-up again. We also note that Bowman testified that her current anti-depressant
was not as effective as a previous one, which she stopped taking because of side
effects.
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The ALJ's finding that Bowman's compression fractures responded well to
conservative treatment is also unsupported. Although a 1997 hospital note indicated
Bowman had some pain relief due to physical therapy and medication, that note does
not undermine Bowman's testimony as to the pain caused by her compression
fractures. The ALJ again failed to consider the nature of the impairment. Dr. Cooper
explained that although Bowman may have periods of relief from her compression
fractures, because of her osteoporosis, any minor trauma could cause more fractures
resulting in more pain. Indeed, at the hearing, Bowman testified that she did not
know quite how to explain the cause of her pain, but knew if she did not "catch a
sneeze" or "coughed hard," something "popped" and she was in pain. Dr. Cooper also
explained that Bowman's kyphosis was a progressive condition, causing her to be
"humped over" and in pain.
Because the ALJ failed to consider the progressive nature of Bowman's spinal
impairments and the relapsing, remitting nature of her systemic lupus and failed to
consider the combined effect of her impairments, both mental and physical, the
medical evidence does not show, as the ALJ found, that Bowman's condition had not
significantly deteriorated since she was laid off of work in 1995.3
The ALJ also erred in discounting Bowman's allegations of disabling pain
because she had been treated medically, not surgically, for her impairments. "No
medical report suggests that [Bowman] has not been pursuing a valid course of
3
In this case, we do not believe that the fact that Bowman was laid off in 1995,
"and did not quit because of her impairment[s] [is] an inconsistency so striking as to
negate [her] subjective claims of pain" concerning her disability beginning in June
1998. Cox v. Apfel, 160 F.3d 1203, 1208 (8th Cir. 1998). We also note that Bowman
explained that in a previous application she had alleged a disability onset date at the
time of the lay-off because she did not believe she could continue to work because of
swelling in her feet and legs. See id. (no inconsistency where onset of disability
coincided with lay-off). Bowman also noted that her previous job accommodated her.
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treatment." Tate v. Apfel, 167 F.3d 1191, 1197 (8th Cir. 1999). No doctor has
recommended surgery for her conditions. To the contrary, Dr. Cooper, an orthopedic
surgeon, referred Bowman back to Dr. Plunk for medical management of her spinal
impairments.
Even assuming Bowman's pain, swelling, and depression were controlled by
medication, the ALJ failed to develop the evidence as to the medications' side effects.
Although the ALJ did not believe Bowman's testimony concerning her inability to
perform ordinary daily activities and need to rest three or four hours a day, we note
that the combination of Oxycontin and an anti-depressant can result in sedation, PDR
at 2914, and Skelaxin can cause drowsiness and nervousness. Id. at 1301. Moreover,
Oxycontin is a "controlled substance with abuse liability similar to morphine." Id.
at 2912.
Although Dr. Plunk's medical notes have numerous entries indicating office
visits or telephone calls for prescription refills, as the Commissioner notes, the entries
are somewhat cursory, as is the doctor's 1999 letter listing Bowman's impairments and
medications. In cases such as this, the ALJ was obligated to contact Dr. Plunk, who
has treated Bowman for thirty years, for "additional evidence or clarification," 20
C.F.R. § 404.1512(e), and for an assessment of how the "impairments limited
[Bowman's] ability to engage in work-related activities." Lauer, 245 F.3d at 706; see
also Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000) ("In spite of the numerous
treatment notes . . . not one of [claimant's] doctors was asked to comment on his
ability to function in the workplace."). Instead of developing the record from Dr.
Plunk, in assessing Bowman's residual functional capacity, the ALJ improperly relied
on the report of a state consultant, who did not examine Bowman. See id. We remind
the ALJ that "opinions of doctors who have not examined the claimant ordinarily do
not constitute substantial evidence on the record as a whole." Id. We also remind the
ALJ that "the testimony of a vocational expert who responds to a hypothetical based
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on such evidence is not substantial evidence upon which to base a denial of benefits."
Id.Accordingly, we reverse the judgment of the district with instructions to
remand to the Commissioner for further proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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