Gamradt v. Barnhart

Full title: CONSTANCE M. GAMRADT, Plaintiff, vs. JO ANNE B. BARNHART, Commissioner of…

Court: United States District Court, D. Minnesota

Date published: Feb 3, 2003

Civ. No. 01-2205 (ADM/RLE) (D. Minn. Feb. 3, 2003)

Opinion

Civ. No. 01-2205 (ADM/RLE)

February 3, 2003

REPORT AND RECOMMENDATION

RAYMOND L. ERICKSON, United States Magistrate Judge

I. Introduction

The Plaintiff commenced this action, pursuant to Section 205(g) of the Social Security Act, Title 42 U.S.C. § 405 (g) , seeking a judicial review of the Commissioner's final decision, which denied his application for Disability Insurance Benefits ("DIB"). The matter is now before the Court upon the parties' cross-Motions for Summary Judgment. For these purposes, the Plaintiff has appeared by Edward C. Olson, Esq., and the Defendant has appeared by Lonnie F. Bryan, Assistant United States Attorney.

For reasons which follow, we recommend that the Plaintiff's Motion for Summary Judgment be denied, that the Defendant's Motion be denied, and that the matter be remanded for further proceedings in accordance with this Report.

II. Procedural History

The Plaintiff protectively filed an application for DIB on October 4, 1996, which alleged that she had become disabled on January 1, 1994, due to chronic fatigue. [T. 16, 110-113]. Her claim was denied upon initial review, and upon reconsideration. [T. 88-89, 95, 98].

On June 27, 1997, the Plaintiff requested a Hearing before an Administrative Law Judge ("ALJ") and, on May 9, 1997, a Hearing was conducted, at which the Plaintiff appeared personally, and by legal counsel. [T. 16, 103]. Thereafter, on July 20, 1998, the ALJ issued a decision which denied her claim for benefits. [T. 13-27]. The Plaintiff requested administrative review before the Appeals Council which, on September 28, 2001, declined to review the matter further. [T. 8-8A]. Thus, the ALJ's determination became the final decision of the Commissioner. Steahr v. Apfel, 151 F.3d 1124, 1125 (8th Cir. 1998);Johnson v. Chater, 108 F.3d 942, 943-44 (8th Cir. 1997);20 C.F.R. § 404.981. This action was commenced on November 30, 2001.

III. Administrative Record

A. Factual Background. At the time of her Hearing, the Plaintiff was 33 years old, she graduated from high school, and received an Associate Certified Certificate. [T. 52, 110]. The Plaintiff has prior work experience as an accounts receivable clerk, credit clerk, leasing agent, machine operator, nursing assistant, and retail sales clerk. [T. 192]. As related by the Plaintiff, she began experiencing problems with fatigue, and pain, before her alleged onset date of disability. [T. 51]. At the time of her Hearing, the Plaintiff had not engaged in substantial gainful activity since the alleged onset of her disability, on January 1, 1994. [T. 17-18].

On December 13, 1992, the Plaintiff was examined by Dr. James Vevaina, who recorded that the Plaintiff "probably has chronic fatigue syndrome." [T. 363]. The Plaintiff then was seen at the Hamm Clinic, from December 28, 1993, until June 20, 1994, by Janet Thomas, and from July 20, 1994, to October 26, 1994, by Michael S. Kehoe, a licensed social worker. [T. 193]. In a letter dated December 3, 1996, Kehoe wrote that, when he last saw the Plaintiff, on October 26, 1994, she met the criteria for 300.40 Dysthymia,¹ but no longer met the criteria for 296.22 Major Depression, with which she had been diagnosed at the commencement of her treatment with Thomas. Id. Kehoe further stated that, during his treatment of the Plaintiff, she did not meet the criteria for Chronic Fatigue Syndrome ("CFS"), and that, at that time, she appeared fully capable of doing work related activities despite her impairment. Id.

1 Dysthymia is a chronically depressed mood that occurs for most of the day, more days than, not for at least two years, and which is indicated by depressive manifestations occurring at a sub-threshold level, and overlapping considerably with those of a depressed temperament: habitually gloomy, pessimistic, humorless, or incapable of fun; passive and lethargic; introverted; skeptical, hypercritical, or complaining; self-critical, self reproaching, and self-derogatory; and preoccupied with inadequacy, failure, and negative events. Dorland's Illustrated Medical Dictionary, at 559 (29th Ed. 2000); Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"), at 376 (4th Ed. 2000); The Merck Manual, at 1538 (17th Ed. 1999).

When the Plaintiff first began seeing Thomas, she presented with a variety of symptoms, including: depressed mood, weight gain, fatigue, irritability, and extreme hypersomnia. [T. 203-209]. A Minnesota Multiphasic Personality Inventory ("MMPI") profile also indicated severe depression, and anxiety. [T. 203]. The Plaintiff was prescribed Zoloft² for depression, and Nortriptyline³ to restore her sleep schedule. [T. 203, 206]. Thomas reported that, within a few weeks of beginning therapy, and taking her medications, the Plaintiff began to experience some relief from her depressive symptoms. [T. 203].

2 Zoloft, also known as Sertraline Hydrochloride, is a selective serotonin reuptake inhibitor, which is indicated for the treatment of major depressive disorder. See, Physician's Desk Reference, at 2751-53 (56th Ed. 2002).

3 Nortriptyline refers to a tricyclic antidepressant that is used to treat symptoms of depression, and to relieve chronic, severe pain.Dorland's Illustrated Medical Dictionary, p. 1151 (28th Ed. 1994).

The Plaintiff was even able to take two breaks from treatment, during which she traveled to Arizona, where she attended to personal and family business — management of a condominium she owned there, and supporting her stepmother. [T. 203]. The first break was only for two weeks, but the second break lasted approximately two and a half weeks, commencing in mid-February of 1994. Id. The Plaintiff reported that, during those visits to Arizona, she felt energetic, enthusiastic, and optimistic. Id. Upon returning to Minnesota, in May of 1994, the Plaintiff stated that she felt more depressed, but later, she admitted to unintentionally going off of her medications during that time. Id.

In June of 1994, the Plaintiff continued to report a decrease in her depressive symptoms, and remarked that her sleeping had become regular, and that she felt, and appeared, less irritable and depressed. [T. 203]. She continued, however, to express a lack of motivation for seeking employment. Id. As recounted by Thomas, the Plaintiff stated:

I've already tried working and I know I can't do it. I'm still recovering from being so burned out on my last job. * * * If I went back to work now, I would go back to just the way I was before, really depressed.

Id.

The Plaintiff also expressed frustration with her mother, who was pressuring her to find work. [T. 203]. As quoted by Thomas, the Plaintiff reported:

I suppose that I should reward her by improving, but if I do, I'm afraid that she'll stop (i.e., spending time with her)

Id.

Thomas also recorded that the Plaintiff had been extremely verbal and cooperative throughout the course of therapy, suggested that the Plaintiff needed someone to listen to her, and stated that more direct expressions of her feelings may also decrease complaints about physical symptoms. [T. 203].

In a Diagnostic Summary of June 20, 1994, Thomas listed the Plaintiff's clinical syndromes as Major Depression, single episode, and stated that her symptoms were: fatigue, lack of motivation, feelings of worthlessness, and significant weight gain. [T. 204]. Thomas also reported that the Plaintiff had a Personality Disorder, not otherwise specific ("NOS"), and he listed her symptoms as: demands reassurance, approval or praise from others; reports having a very strong need for attention and affection from others; reacts to criticism with feelings of rage, shame, or humiliation; expresses a sense of entitlement (to take a few years off of work and to be supported by her family); seeks an excessive amount of advice and reassurance; has a great deal of difficulty initiating projects on her own; procrastinates; believes others are making unreasonable demands on her; becomes irritable and argumentative when asked to do something she does not want to do. Id.

On July 20, 1994, Kehoe completed an Intake Data Summary, in which he described the Plaintiff's complaints as including a difficulty in dealing with people, which caused her to have no confidence in finding a job, and a problem with people who had authority over her. [T. 199]. The Plaintiff reported that she enjoyed taking care of a male companion's four children, ages twelve, eleven, nine, and seven, and was contemplating moving in with that companion in order to take care of the children on a more permanent basis. Id. The Plaintiff did, however, report having "male issues," [T. 200]. The Plaintiff also stated that, since starting therapy at Hamm Clinic, she felt more energetic, and that her depressed feelings were not as severe. [T. 200].

Kehoe noted his impressions of the Plaintiff, by stating that she appeared to be less depressed, and more motivated, than when she was first seen at Hamm Clinic, but he noted that the Plaintiff continued to have some depressed moods, which she related to her family situation. [T. 200]. Kehoe stated that the Plaintiff also continued to desire closer, and more intimate, relationships with members of her immediate family. Id. The Plaintiff expressed anxiety when relating to people, who the Plaintiff perceived to have authority over her, and she had difficulty interacting with those people. Id. Kehoe also observed that the Plaintiff had anger and resentment towards men, which seemed to originate from her relationship with her father. Id. Lastly, the Plaintiff appeared to Kehoe as having good hygiene, she was verbal and cooperative, she showed a range of emotion, her affect was congruent, she followed Kehoe's questions, and she was oriented, and maintained good eye contact. [T. 201].

On August 22, 1994, the Plaintiff failed to show at a scheduled treatment session with Kehoe, but did appear on August 29, 1994. [T. 198]. At that time, the Plaintiff reported that her medications — Zoloft, and Nortripyline — helped. Id.

It appears that the Plaintiff was next seen on April 27, 1995, at St. Paul Ramsey Medical Center — Ramsey Clinic ("Ramsey"), in the Psychiatry department, by Peter B. Brandenhoff, who holds a masters in social work. [T. 218]. She complained of feeling "very depressed." Id. The Plaintiff also reported that she had a possible job opportunity as a janitor, working at minimum wage. Id. Brandenhoff diagnosed the Plaintiff with depressed symptoms, and CFS. Id. The Plaintiff was then seen several more times by both Brandenhoff, and Sharon Engdahl, a licensed social worker, with visits on May 3, 1995, May 15, 1995, June 21, 1995, and June 28, 1995. [T. 214-17].

On May 3, 1995, the Plaintiff advised that she was feeling better, but had little energy. [T. 217]. That evening, the Plaintiff reported that she was to begin work as a custodian at a health club. Id. On May 15, 1995, the Plaintiff explained that the job was going good, but that she did not like it, and was "capable of more." [T. 216]. On June 21, 1995, the Plaintiff reported that she had quit the job because she could not remember when she was scheduled to work. [T. 215]. The Plaintiff was not meeting her treatment goals and, in the latter sessions, she expressed anger and frustration, first at her significant others, and then at Brandenhoff, Engdahl, and the treatment process, which she saw as having failed her. [T. 214-15]. She also repeatedly failed to take responsibility for her own actions, and expressed her opinion that others owed her something. [T. 214-16]. Brandenhoff and Engdahl diagnosed the Plaintiff with Major Depressive Disorder, recurrent. [T. 214-17].

In July of 1995, the Plaintiff was seen by Dr. Jennifer Krzmarzick, at Ramsey. [T. 262]. The Plaintiff advised that she had CFS, with a history of night sweats, nausea, and headaches, but she reported that she was no longer suffering from those symptoms. Id. The Plaintiff also denied smoking, or tobacco use, and stated that, overall, her course was improving, but that, lately, her condition had worsened. Id.

The Plaintiff described her conditions as a rash on the bridge of her face, photophobia, swelling in her throat and tongue, extreme fatigue, decrease in weight, and a decrease in exercise tolerance. [T. 262]. The Plaintiff reported living with her father and step-mother, and she stated that she had some social contacts. [T. 263]. Upon observation, Dr. Krzmarzick observed bunions on both of the Plaintiff's feet, noting that the right foot was worse than the left, but that the bunions were nontender, and non-erythematous.⁴ Id.

4 Erythematous describes a reddening of the skin produced by congestion of the capillaries. See, Dorland's Illustrated Medical Dictionary, at 617-18 (29th Ed. 2000)

On July 25, 1995, Dr. Krzmarzick discussed placing the Plaintiff on Zoloft, and advised her that such a course would better enable her to be diagnosed with either depression, or CFS. [T. 260-61]. On October 24, 1995, Dr. Krzmarzick opined that the Plaintiff had probable chronic fatigue syndrome. [T. 257].

On August 8, 1996, the Plaintiff saw Dr. Karen Hulbert for a follow-up for possible CFS. [T. 249]. Dr. Hulbert stated that the Plaintiff met most of the major and minor criteria for CFS. Id. The Plaintiff was, at that time, taking Wellbutrin,⁵ but she told Dr. Hulbert that she wanted to decrease her dosage because she felt that her moods had stabilized, and she did not feel the benefits of the drug. Id. The Plaintiff continued to have disabling fatigue, poor concentration, struggled with simple tasks, and complained of muscle burning. Id.

5 Wellbutrin is an antidepressant that is indicated for the treatment of depression. See, Physician's Desk Reference, at 1680-81 (56th Ed. 2002)

On November 12, 1996, the Plaintiff was examined by Dr. Alford S. Karayusuf. [T. 237-39]. The Plaintiff's chief complaint was chronic fatigue. [T. 237]. She explained that she was in bed eighteen hours a day, bathed once or twice a week, and changed her clothing every three days. [T. 238]. The Plaintiff further reported that she did not perform any household chores, except for washing the dishes every few days, but she stated that she did drive and, on occasion, she went to the grocery store to make specific purchases. Id.

The Plaintiff also reported that she went to church once or twice a month, but noted that her concentration was limited. [T. 238]. She went on to say that she had no hobbies, did not date, did not read, and watched television several hours each day, but often could not concentrate. Id. The Plaintiff related that she had a few friends with whom she spoke on the telephone every day. Id.

Dr. Karayusuf observed that the Plaintiff appeared oriented during the examination, that her memory was good, that her intelligence was dull normal, and that her insight was fair. [T. 238]. Dr. Karayusuf further noted that the Plaintiff was cooperative; showed no psychomotor agitation retardation, vigilance, or scanning; had mild tension, good eye contact, and normal speech. Id. The Plaintiff's mood, however, was mildly to moderately depressed, with appropriate affect. Id.

Dr. Karayusuf's provisional diagnosis was depression, NOS. [T. 238]. Based solely upon the Plaintiff's psychiatric condition, Dr. Karayusuf concluded that the Plaintiff was able to understand, retain, and follow simple instructions. Id. His conclusion also stated that the Plaintiff possessed the ability to interact with fellow workers, supervisors, and the public, for brief, superficial, and infrequent interactions; and was able to maintain pace and persistence within the context of performing simple, routine, repetitive, concrete, and tangible tasks. [T. 238-39].

On December 4, 1996, the Plaintiff again saw Dr. Hulbert. [T. 243]. In her notes, Dr. Hulbert recorded that the Plaintiff was no longer taking any medications, and had reported that the medications were not significantly helpful. Id. The Plaintiff also reported that she continued to have low energy, and was not sleeping well at times. Id. Dr. Hulbert prescribed the Plaintiff Trazodone⁶ to help with the Plaintiff's sleeping. Id. Dr. Hulbert further noted that the Plaintiff had successful bunion surgery. Id.

6 Trazodone is an antidepressant used to treat major depressive episodes with or without prominent anxiety. See, Dorland's Illustrated Medical Dictionary, at 1868 (29th Ed. 2000)

On December 25, 1996, Dr. Charles T. Grant reviewed the Plaintiff's medical record, and concluded that the Plaintiff's exertional limitations were as follows: lifting and carrying fifty pounds occasionally, twenty-five pounds frequently; stand or walk, as well as sit, for a total of about six hours in an eight-hour day; and unlimited ability to push or pull. [T. 298-305]. Dr. Grant noted that his conclusions were made with the Plaintiff's symptoms of fatigue, and psychiatric illness in mind, reporting that the Plaintiff's alleged history of CFS was alleged to have been originally diagnosed in California, but that there was no medical record available. The doctor also observed that there was no historical, physical, or laboratory evidence to establish that the Plaintiff suffered from CFS, or any other disabling disorder. [T. 299]. Dr. Grant then stated that the limitations he noted were based on the Plaintiff's history of psychiatric illness. [T. 300]. Dr. Grant also reported that the Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. [T. 300-02]. Dr. Robert Hammerstrom, on April 8, 1997, reviewed all of the evidence, and affirmed Dr. Grant's assessment. [T. 305].

On December 27, 1996, Dr. R. Owen Nelson performed a psychiatric review of the Plaintiff's medical records. [T. 306-14]. Dr. Nelson determined that the Plaintiff's mental impairment was not severe, and based that assessment on listing 12.04, Affective Disorders. [T. 306]. Dr. Nelson concluded that the Plaintiff's record failed to establish the presence of a medically determinable mental impairment, and stated that there may have been brief periods of time, during the relevant period, when the Plaintiff's depression reached moderate to severe proportions, but not for a period of time that would satisfy the programmatic durational requirements. [T. 307]. Specifically, Dr. Nelson concluded that the Plaintiff's record did indicate a disturbance of mood, which was accompanied by a full or partial manic or depressive syndrome, as evidenced by: sleep disturbance, decreased energy, and a difficulty in concentrating or thinking. Dr. Nelson diagnosed the condition as depression, NOS. [T. 309]. When rating the severity of the Plaintiff's symptoms, however, Dr. Nelson concluded that the Plaintiff was only "slightly" limited in her daily activities, social functioning, concentration, persistence, and pace. [T. 313]. Dr. Nelson felt that the Plaintiff would "never" be limited by episodes of deterioration, or decompensation in the workplace. Id. Dr. Nelson's assessment was affirmed on April 8, 1997, upon the review by another physician. [T. 306].

On February 20, 1997, Dr. Hulbert examined the Plaintiff, at the Plaintiff's request for a letter enabling her to obtain DIB. [T. 242]. A Dr. Hart also accompanied Dr. Hulbert for this examination. Id. Dr. Hulbert noted that her examination of the Plaintiff was unremarkable, with no palpable cervical or supraclavicular lymphadenopathy, and normal strength and tone. Id. A previous work-up also revealed no abnormalities. [T. 241-42]. The Plaintiff was not taking any medications, including the Trazodone which Dr. Hulbert had prescribed her as a result of her complaints of headaches which she had associated with that drug. [T. 241]. The Plaintiff was involved in a CFS support group, and she reported worsening physical conditions. Id.

On April 24, 1997, the Plaintiff presented to Dr. Hulbert, seeking work capacity forms, and Dr. Hulbert reported not feeling comfortable in filling out information to enable the Plaintiff to obtain DIB, and permanent disability. [T. 324]. Dr. Hulbert also discussed the possibility of referring the Plaintiff to a specialist, and stated that, at that point, she was unable to offer the Plaintiff anything further than what had already been tried. Id. Dr. Hulbert, however, did offer the Plaintiff additional medications — which the Plaintiff declined — and suggested physical therapy, or pool therapy. [T. 325].

Dr. Hulbert referred the Plaintiff to Dr. Ellen Shammash, who examined the Plaintiff on June 18, 1997, and concluded that the Plaintiff's constellation of features was most consistent with fibromyalgia,⁷ noting that the Plaintiff certainly presented with symptoms which overlap the features of CFS, but explained that the Plaintiff's general achiness, and tender points, were features of fibromyalgia. [T. 285-86]. Dr. Shammash, noting that the Plaintiff had not yet been through any organized physical therapy, or exercise program, discussed with the Plaintiff the importance of aerobic exercise. [T. 286]. Dr. Shammash expressed the view that the Plaintiff would benefit from the Fibromyalgia Assessment Clinic, and provided the Plaintiff with the telephone number for a fibromyalgia support group. Id. A prescription for Ambien⁸ was also prescribed for the Plaintiff, and an over-the-counter pain reliever was recommended. Id.

7 Fibromyalgia is characterized by pain and stiffness in the muscles and joints that is either diffuse or has multiple trigger points. See, Dorland's Illustrated Medical Dictionary, at 673 (29th Ed. 2000).

8 Ambien is a non-benzodiazepine hypnotic that is prescribed for the short-term treatment of insomnia. See, Physician's Desk Reference, at 3191-92 (56th Ed. 2002).

Dr. Shammash told the Plaintiff that she was unwilling to sign an assessment that the Plaintiff was entitled to long-term disability, and stated that, while the nature of the Plaintiff's illness is a chronic one, with self-management the Plaintiff should be able to work. [T. 286]. Continuing, Dr. Shammash stated that the Plaintiff might be limited, in the future, to a decreased number of hours per day. Id.

Over the next several months, the Plaintiff continued to see Dr. Shammash. [T. 338-40, 348-50, 378-84]. In connection with those visits, the Plaintiff was undergoing a course of physical therapy, as recommended, with Ravi Mahant, a physical therapist. [T. 344]. On July 29, 1997, Mahant noted a 75% improvement in the Plaintiff's pain and, therefore, discharged her because she had accomplished 75% of her goals, and the prescribed treatment had expired. Id. Mahant further advised that the Plaintiff was to follow a home exercise program, and initiate a pool therapy regime. Id.

On September 2, 1997, Dr. Shammash again examined the Plaintiff, and noted that her joints were unremarkable, but that she continued to experience diffuse myofacial tender points. [T. 338-39]. The Plaintiff's strength was slightly decreased in her deltoids and proximal hip flexors, but was otherwise normal. [T. 339]. Dr. Shammash recorded the Plaintiff's report that exercise was difficult, observed that such was normal after many years of inactivity, and stressed the importance of long-term aerobic activity, and stretching. Id.

The Plaintiff also complained of anxiety and depression, for which Dr. Shammash felt that treatment was necessary. [T. 339]. Dr. Shammash prescribed Paxil,⁹ and referred the Plaintiff to a psychologist for counseling concerning her anxiety. Id. As for the Plaintiff's physical symptoms, Dr. Shammash advised that her musculoskeletal complaints, and fatigue, were more related to fibromyalgia, since the Plaintiff presented none of the features that would be suggestive of lupus. [T. 339]. Dr. Shammash noted some proximal muscle weakness, which she attributed to deconditioning. Id.

9 Paxil is an antidepressant that is indicated for the treatment of depression. See, Physician's Desk Reference, at 1609-10 (56th Ed. 2002)

Dr. Shammash referred the Plaintiff to Dr. Ellen Snoxell, a licensed psychologist, who evaluated the Plaintiff in the weeks preceding October 14, 1997. [T. 327]. On that date, Dr. Snoxell prepared a report, in which she noted that the Plaintiff had taken an MMPI-2, which was given to her over many visits with Dr. Snoxell, and which spanned a two-week period.Id. This approach was taken in order to accommodate the Plaintiff's complaints of fatigue. Id. The Plaintiff, without any discernible rationale, omitted 35 of the 567 items on the questionnaire, thus impacting upon the ultimate interpretation of the MMPI-2 results. Id. Dr. Snoxell stated that her interpretation of the clinic scales suggested a marked depression in an individual who was experiencing considerable anxiety, and was preoccupied by somatic problems. Id.

Dr. Snoxell also intimated a concern that the Plaintiff might present a risk of suicide. [T. 327]. Dr. Snoxell recommended that treatment for depression be initiated, and that the Plaintiff be carefully monitored thereafter, as an increase in energy might bring on suicidal behavior.Id.

On October 27, 1997, the Plaintiff again visited Dr. Snoxell, for what Dr. Snoxell characterized as "[a] frustrating session for both of us," since the Plaintiff's expectations differed from those of Dr. Snoxell. [T. 326]. Dr. Snoxell expected the Plaintiff to gradually increase her activity, to set goals, and then achieve those goals. Id. The Plaintiff did not want to do any of those things, but rather, in Dr. Snoxell's words, the Plaintiff wanted to "protect herself from stress and failure."Id.

Dr. Snoxell observed that the Plaintiff appeared less tearful, with a brighter affect, increased facial expressions, and faster speech. [T. 326]. The Plaintiff, however, flatly denied feeling any better, and expressed frustration that her physicians felt that she could return to work, and stated that she felt that she should, instead, receive DIB, and would need two years to recover. Id.

On October 28, 1997, Dr. Shammash reported that the Plaintiff had myofascial points at the gluteal regions, and bilateral greater trochanteric bursal areas. [T. 329-30] The Plaintiff had full hip range of motion, which was without pain. [T. 330]. Dr. Shammash also noted that there was no lumbar spine or sacroiliac joint tenderness. Id. Dr. Shammash's impressions, upon this examination, were that the Plaintiff's condition seemed improved. Id. The importance of exercise was again stressed. Id. The Plaintiff was given a prescription for Ultram¹⁰ to help her sleeping, and was instructed to retire early in the evenings in order to be up, and dressed, by 9:00 o'clock a.m. Id.

10 Ultram is a centrally acting synthetic analgesic compound, that is prescribed in the management of moderate to moderately severe pain. See,Physician's Desk Reference, at 2600-01 (56th Ed. 2002).

The Plaintiff did not again see Dr. Shammash until December 10, 1997. [T. 348-50]. At that time, the Plaintiff reported that she was doing better, and that she had been sleeping fairly well, despite going off her prescription for Ambien, which the Plaintiff believed was affecting her memory. [T. 350] The Plaintiff also discontinued taking Paxil, stating that she had experienced some nausea and headaches, which she attributed to the antidepressant. Id. Despite not taking any medications, the Plaintiff reported an improvement in her condition. Id.

Dr. Sharamash also noted that the Plaintiff was not exercising, but nonetheless, she reported decreased pain, particularly in her neck and upper back. [T. 350] The Plaintiff still complained, however, of feeling extremely fatigued, and she reported that she was unable to accomplish much during the day. Id. The Plaintiff reported to Dr. Shammash that she spent her days grocery shopping, cooking, and volunteering at the center where she lived, which included taking care of other resident's children. Id. The Plaintiff stated that doing this "work" helped boost her morale, but she complained that the activity made her feel fatigued.Id.

In her report, Dr. Sharamash referred to the Plaintiff's "frustrating" session with Dr. Snoxell, and noted that Dr. Snoxell had referred the Plaintiff to another patient who was diagnosed with fibromyalgia, with whom the Plaintiff spoke once on the telephone. [T. 350] The Plaintiff, however, never met with this other patient, and never attended pool therapy with that patient, who Dr. Shammash indicated was "a success story, who did not allow her fibromyalgia to interfere with her ability to continue to work." [T. 350-51].

Upon examination, Dr. Shammash recorded that the Plaintiff had a full range of motion in her joints, without pain, tenderness, or synovitis, but that she did have tenderness in the gluteal region. [T. 349] Dr. Shammash also noted that the Plaintiff continued to have extreme fatigue, more so than diffuse pain, and that her sleep pattern was improved. Id. Dr. Shammash stated that she suspected that the Plaintiff's fatigue was a component of depression. Id. The Plaintiff was offered the services of a psychiatrist, but she declined. Id.

Dr. Shammash also reported that the Plaintiff had high LDL cholesterol, and low HDL cholesterol. [T. 348] Dr. Shammash recommended that the Plaintiff start a low-fat diet, and offered the services of a nutritionist, which the Plaintiff also declined. Id. Dr. Shammash again stressed the importance of exercise. Id. Dr. Shammash concluded that the Plaintiff's goal was to obtain DIB, and the doctor noted that there were psychological reasons for that goal, and stated that the Plaintiff would benefit from psychiatric therapy. Id.

Beginning on December 17, 1997, the Plaintiff consulted with Dr. Janet L. Waterman, a licensed psychologist, who prepared a report which detailed her preliminary findings, on February 11, 1998, and which was based on several consultations with the Plaintiff, and a review of the Plaintiff's medical record. [T. 355]. Dr. Waterman's initial impression was that the Plaintiff's primary mental health diagnosis was a Cognitive Disorder, NOS, and specifically, an Adjustment Disorder with Depressed Mood, as opposed to a dysthymic disorder. Id. Dr. Waterman reported that the Plaintiff did not appear to have a major mental disorder, that would account for the degree of her problems with fatigue and low functional level. [T. 356] In reaching that conclusion, Dr. Waterman reasoned that the Plaintiff had described having motivation, interest, and the will to engage in activities, and noted that the Plaintiff's enjoyment of activities was well-documented in her medical record. Id. Dr. Waterman also concluded that the Plaintiff did not meet the criteria for Major Depression, or Personality Disorder. Id.

Dr. Waterman expressed the view that, psychologically, the Plaintiff could relate in the work place, and noted that the Plaintiff was able to make personal and social adjustments, manage her own benefits, and exercised good judgment, but was poorly, or not equipped, to deal with work stresses. [T. 357, 359-61] However, Dr. Waterman also concluded that the Plaintiff's cognitive complaints were identical to the complaints seen globally in patients with CFS, but she stated that, "[w]hether or not she has CFS is of course a medical issue for which I am not qualified to comment on." Id.

On February 18, 1998, the Plaintiff saw Dr. Shammash for a scheduled follow-up. [T. 378-80] The Plaintiff continued to complain of fatigue, and some diffuse achiness, but expressed an overall improvement since undergoing a course of physical therapy. [T. 378] The Plaintiff was doing some minimal stretching, but still was not exercising, due to a lack of energy. Id. She also complained of headaches, nausea, and pain in her hands and feet, but she denied any infectious symptoms, including sore throat. Id.

The Plaintiff expressed concern that she might have the symptoms of lupus, but Dr. Shammash dismissed those concerns based on the Plaintiff's symptoms, and blood work. [T. 378-88] The Plaintiff also continued to express frustration with her psychologist, Dr. Snoxell, who the Plaintiff felt did not understand her reasons for seeking DIB. [T. 378] Dr. Shammash observed some tender points of fibromyalgia, but otherwise, she noted no irregularities. [T. 379] The Plaintiff's cholesterol count was again high, and Dr. Shammash again offered the services of a nutritionist, but the Plaintiff declined, stating that she lacked the energy to make the appointments. [T. 380].

Finally, on March 19, 1998, the Plaintiff was seen by Dr. Allan C. Kind, an infectious disease specialist, seeking verification of her CFS diagnosis for Social Security purposes. [T. 411-12] The Plaintiff complained of pain in her shoulders, neck, and upper back; and headaches, sore throats, trouble sleeping, and difficulty with her memory and concentration. [T. 411] The Plaintiff stated that she thought that she was functioning at 20-40% of her normal capacity. Id. The Plaintiff was not on any medications, other than Tylenol, which is an over-the-counter pain reliever, and which the Plaintiff took as needed.Id.

Upon examination, Dr. Kind observed nothing remarkable, and observed that the Plaintiff was pleasant and talkative. [T. 412]. Dr. Kind opined that the Plaintiff's history of CFS, and fibromyalgia, was consistent with the Plaintiff's story, and noted that the Plaintiff appeared to be disabled. Id. However, Dr. Kind felt that one examination was insufficient to determine whether her CFS, or fibromyalgia, was more important. Id. The Plaintiff was prescribed small doses of amitriptyline¹¹ to help with her achiness and. headaches. Id.

11 Amitriptyline is a tricyclic antidepressant that also has sedative effects, and is used for the treatment of, among other conditions, chronic pain. See, Dorland's Illustrated Medical Dictionary, at p. 63 (29th Ed. 2000).

On April 16, 1998,¹² Dr. Kind completed a "CFS Questionnaire," which was based on the Centers for Disease Control's criteria for a diagnosis of CFS. [T. 406-08] Dr. Kind reported that the Plaintiff presented both the major and minor criteria for CFS, and stated that he believed that, indeed, the Plaintiff had CFS. [T. 406-07] Dr. Kind assessed the Plaintiff's CFS as mostly severe, and reported that the Plaintiff's inability to maintain regular attendance, complete a normal workday without interruption, complete a normal workweek without interruption, and perform at a consistent pace without an unreasonable number and length of rest periods, was severe. [T. 408]. The Plaintiff's inability to maintain attention and concentration, for extended periods, was moderately severe. Id. Dr. Kind did not provide an explanation for his assessment, but stated that the Plaintiff's impairment had been present, at substantially the degree of severity indicated, since at least January 1, 1994. Id. B. Hearing Testimony. The ALJ commenced the Hearing by detailing the procedural background of the Plaintiff's claim. [T. 43-45] The ALJ then allowed the Plaintiff's attorney to make a brief opening statement. [T. 44-47] The Plaintiff's counsel first stated that the Plaintiff's primary complaint was CFS, but also included fibromyalgia, and depression. [T. 45] Then, counsel highlighted certain aspects of the Plaintiff's medical records. [T. 46] He concluded his opening remarks by noting that there was no Listing for CFS, but he felt that a review of the Plaintiff's CFS, by itself, or in combination with fibromyalgia and/or depression, established that the Plaintiff suffered an impairment that reasonably accounted for the limitations found by Dr. Kind, and others. [T. 46-47].

12 Dr. Kind signed, and then dated the questionnaire, April 16, 1997, but the form was not sent to him until March 20, 1998. [T. 406-08] Thus, Dr. Kind must have written the wrong year.

The ALJ then began questioning the Plaintiff. [T. 47] The ALJ first posed several background questions, including questions about the Plaintiff's past, and current, living situation. [T.

48] The Plaintiff explained that, for the past seven months, she had been living in transitional housing, and that, prior to that residence, she had been living with her cousins for about six months. [T. 48] The Plaintiff lived with her sister for a couple of months, before moving-in with her cousins, and prior to living with her sister, the Plaintiff resided in the basement apartment of her male friend's home. Id. The Plaintiff revealed that a romantic relationship developed between herself, and her friend from whom she had been renting. Id. At first, the Plaintiff had been paying rent but, as the relationship evolved, she discontinued paying rent. [T. 49]. Instead, the Plaintiff provided childcare for her friend's four children — ages seven, nine, eleven, and twelve — who also resided in the residence where the Plaintiff lived. Id.

The Plaintiff explained that she left this living situation, and relationship, because her friend became verbally abusive. [T. 49] The Plaintiff also testified, however, that on one instance, she became very angry, hit her friend, and was subsequently jailed. Id.

The ALJ then asked the Plaintiff about her income, and her work experience over the past four years. [T. 49] The Plaintiff responded that she was receiving welfare, and that she had worked at Bali's Total Fitness, where she cleaned. [T. 50]. This job lasted approximately one or two months, at which point she "couldn't make it," so she quit. Id.

The Plaintiff testified that she had worked for Amoco Oil for about three or four months. [T. 50] Her duties were limited to office work, which included some filing and copying, but no typing, or mail distribution. [T. 50-51] The Plaintiff explained that she left that job because she "was not able to handle it," and added that she remembered "sitting at the desk and not wanting to take my next breath because I was so worn out and tired and my shoulders and back, I had a lot of pain." [T. 51] The Plaintiff attributed her symptoms to stress, but stated that it was not a stressful job. Id. Responding to the ALJ's questions, the Plaintiff also stated that she had experienced those symptoms since before January of 1994. Id.

The ALJ next questioned the Plaintiff about whether she had been taking any medications at the time that she quit her job at Amoco Oil. [T. 51] The Plaintiff responded that she was taking some medications for depression, which had adverse side-effects, but that she was unable to state whether her taking of the medications had coincided with her employment at Amoco. Id. The Plaintiff was not taking any medications for pain. Id.

The ALJ also asked the Plaintiff if she had a valid driver's license, to which the Plaintiff responded that she did, and added that she also had a car, which she drove. [T. 51-52] The ALJ asked about the Plaintiff's educational background, [T. 52], and she stated that she was a high school graduate, and had also obtained an Associate Certified Certificate, for dealing in commercial credit. Id. The Plaintiff explained that she had obtained that certification through her company, which had been preparing her for a promotion that would have made her the credit manager. The certification process involved a three-year course of night study. Id. The Plaintiff left that company in 1991, or 1992, when the onset of her symptoms occurred. [T. 53].

The ALJ then inquired into the Plaintiff's symptoms, and whether those symptoms varied in intensity through the years, and months, or remained constant. [T. 53] The Plaintiff responded that her symptoms did vary, depending on the degree of stress in her life. Id. The ALJ asked the Plaintiff to provide an example of a stress in her life, which would result in the complained of symptoms. [T. 54] The Plaintiff replied that she currently lived with many people, and explained that doing so was difficult because she was often awakened by loud noises, when her sleeping pattern was not the best in any event. Id. The Plaintiff also stated that pain kept her from sleeping soundly, and added that the pain extended throughout her body, but was mostly in her legs and arms, and especially her right leg, which she described as a sharp stabbing pain. [T. 54-55].

At the time of the Hearing, the Plaintiff was only taking Tylenol for her pain, explaining that a couple of months earlier she had been on a prescription pain reliever, Flexeril,¹³ but that the drug made her dizzy and nauseated, and caused her to experience dry mouth, and sore throats. [T. 56-57] The Plaintiff also tried taking Ibuprofen, but experienced heartburn, and diarrhea, from that medication. [T. 57] When asked, she could not recall any other medications that were taken for pain relief. Id.

13 Flexeril is a trademark for a preparation of cyclobenzaprine hydrochloride, which is a muscle relaxant. See, Dorland's Illustrated Medical Dictionary, at 685 (29th Ed. 2000).

The ALJ continued, by asking the Plaintiff about the medications she was taking for depression. [T. 58] The Plaintiff responded that she was not, at the time of the Hearing, taking any medications for depression, but stated that she had been taking Paxil, but could not recall when she last took the drug, and stated that she experienced stomach sickness, and dry mouth with that medication. Id. The ALJ inquired whether the Plaintiff had taken any other antidepressants, and the Plaintiff replied that, in approximately 1993, for a period of six to eight months, she had taken Zoloft, and Nortriptyline, which had helped greatly with her depression and, as to them, she could not recall experiencing any adverse side effects. [T. 59] The Plaintiff added that she came out of the depression and, thus, discontinued the medications. Id. She further testified that she had not experienced a relapse into a state of deep depression since discontinuing the medications. Id.

The ALJ then asked the Plaintiff about her muscle aches. [T. 60] The Plaintiff testified that, during the preceding month, she experienced substantial pain in her legs and arms, and related that her extremities were constantly sore and achy, and felt bruised. Id. The ALJ inquired whether her doctors had prescribed a course of exercise, and the Plaintiff replied that she was prescribed some stretching exercises, which she had been doing. Id. The Plaintiff further advised that, on occasion, she went to the store, or walked, which she also considered to be exercise. Id. The Plaintiff stated that she walked around the block, and sometimes walked five blocks to her father's house. [T. 61] She also reported that, on one occasion, she walked ten blocks, but collapsed upon returning home. She asserted that, while she was walking, she was talking with a companion and did not feel bad. Id.

The Plaintiff was next asked about her living situation, and explained that, although her meals were prepared for her, she made her own bed, and cleaned her own room. [T. 61]. She also stated that she did her own laundry. [T. 61-62] She testified that she had made few friends, and wanted to distance herself from her fellow residents, for fear that she would "snap," or become angry with them. [T. 62]. Responding to questions about her daily activities, the Plaintiff related that she had concentration problems when she attempted to read, but that she did have a Bible in her room, which she read. Id. The Plaintiff also explained that she had a couple books on recovering from CFS, and college math textbooks, from which, on occasion, she attempted to do math problems.Id.

The Plaintiff also testified that she did not smoke, or drink, and that she rarely watched television. [T. 63] She described her typical day, by stating that she usually retired sometime between 9:00 o'clock p.m., and 11:00 o'clock p.m. Id. She added that she was usually sore, and that she had a persistent headache, and stated that it usually took some time before she actually fell asleep, but that she typically fell asleep sometime between midnight, and 5:00 o'clock a.m. Id. The Plaintiff went on to say that she was supposed to be up, and dressed, by 9:00 o'clock a.m., but stated that she did not usually accomplish that as, on a good day, she was up by 10:00 o'clock a.m., while on other days, she never got up, but stayed in bed, or would eat breakfast and then immediately return to bed, even though she would usually not be able to sleep. [T. 64] The residence, at which she resided, would not penalize her for failing to make the 9:00 o'clock a.m. deadline. Id.

On some days, she would drive to health lectures, which were provided by Health East, and would last one hour. Id. The Plaintiff added that she attended about half of the lectures, which amounted to once a week. Id. Twice a month, the Plaintiff attended a CFS support group, and those meetings were scheduled to run about an hour and a half. [T. 65] The Plaintiff testified that, on other occasions, she did chores — like laundry — about twice a month; she watched her sister's three children — ages fourteen, eight, and four — but not all at once; and about four times a month, the Plaintiff just visited with the children, either driving to her sister's home, or having the children come to her residence. Id. The Plaintiff also stated that she sometimes cared for her cousin's child. [T. 66].

The ALJ inquired whether the Plaintiff had traveled during the preceding four years, [T. 66], and she responded that, about a year earlier, she had traveled to Phoenix, Arizona, by plane, in order to dog-sit for one of her friends, who was busy at work. [T. 66-67] The Plaintiff explained that she lived with her friend for about a month. [T. 67] She also testified that she experienced significant anxiety concerning this trip, and she described the difficulties, and pain, that she had experienced while packing and preparing for the trip. Id. The Plaintiff explained that, after a few days, she adjusted and her symptoms became bearable, as they had been prior to her arrival in Arizona. Id.

The ALJ concluded his questioning of the Plaintiff by asking her about her pain, and whether she experienced pain in her hands, arms, fingers, and wrists. [T. 67] The Plaintiff responded that she experienced some pain, but that the pain was bearable, and was the sort that a normal person would experience. Id.

The Plaintiff was then questioned by her attorney. [T. 68]. Counsel asked the Plaintiff about her work at Amoco, and whether she recalled accruing any absences during that employment. Id. The Plaintiff testified that she did not remember if she ever missed work, but stated that she was often tardy, as she was very slow at getting ready. Id. Counsel then drew her attention to an earlier conversation he had with her, during which she had informed him that there were frequent periods of time when she would miss up to three consecutive days of work. Id. The Plaintiff responded that she was referring to her job in California. [T. 68-69]. Counsel then asked her to describe what she would do to try to rest while at that job. [T. 69] The Plaintiff stated that she would shut her office door, and would lie down on the floor, and rest for from ten minutes, to one hour, at times. Id. The Plaintiff added, however, that she was not able to confine her resting periods to the two fifteen minute breaks, and a thirty minute lunch break, for she was constantly thinking about how she could lie down to rest, or relieve her headaches. Id.

Counsel then inquired about the relationship between the Plaintiff's symptoms, and stress, and asked whether there were stress-free times in which the Plaintiff had experienced no symptoms. [T. 69] The Plaintiff responded that she was never completely free of her symptoms, that she had not had a good day since she became sick, and that some days were better than others, but that she never felt normal. [T. 69-70].

The Plaintiff also testified that she was not, at the time of the Hearing, taking any medications. [T. 70] She explained that Dr. Kind had prescribed something for her, but that the medication made her feel more sick. Id. She also stated that she was not taking any street drugs. [T. 71].

Counsel for the Plaintiff next questioned the Plaintiff about her bad days, and how those days contrasted to her good days. [T. 71] The Plaintiff testified that, on average, she had two good days a week, which she stated were not actually good days, but days that were just better than other days. [T. 72] Her attorney then asked about the days on which she visited with her sister's children, or with the children of her cousin, and how often she felt well enough to engage in those activities. Id. The Plaintiff responded that she never felt well enough to visit the children, but she did so anyway. Id. The Plaintiff went on to say that there were some days on which she had to cancel her plans to visit the children. Id. She also testified that she planned one activity each day, crossing out those days on which she was unable to engage in the activity, and stating that about half the days were crossed out in a given month. Id.

The Plaintiff's attorney concluded his examination by asking the Plaintiff about her ability to work. [T. 72-73] First, the Plaintiff was asked whether she thought that she would be able to perform any entry level office work. [T. 73] The Plaintiff responded that she could not, and added that, if she could work, she would have been working. Id. The Plaintiff was then asked whether, assuming that there were twenty-two work days in a month, she would be able to work eight hours a day for at least eighteen of those twenty-two days. Id. The Plaintiff responded that she could not. Id.

Next, the Hearing turned to the testimony of the neutral Medical Expert ("ME"), Dr. John LaBree, who was first asked some routine questions by the ALJ, and then the ME questioned the Plaintiff. [T. 73-74] The ME first asked the Plaintiff how many times she had seen Dr. Kind. [T. 74] The Plaintiff testified that she had seen him three times, and added that she could not remember the name of the medication that Dr. Kind had prescribed, or the condition for which the prescription was made. [T. 74-75].

The ME then asked the Plaintiff whether she had tried physical therapy, or pool therapy, and the Plaintiff replied that she had could both, and that she had engaged in pool therapy for a period of three or four months. [T. 75] The Plaintiff added that the pool therapy helped, but that she was forced to stop because it became increasingly difficult to get there, she was growing increasingly tired, and she could not financially afford to continue. Id. The Plaintiff further testified that she tried to do some stretching exercises, and that she walked twice a month. [T. 75-76].

The ME then inquired whether she was seeing anyone for her depression. [T. 76] The Plaintiff responded that she had seen Dr. Van Hauer on one occasion, or perhaps twice. [T. 76] The ME concluded his examination by asking her the reason for her diagnosis, in 1992, or 1993, of Major Depression, and the Plaintiff responded that she could not hang onto life, or her job, anymore, and that she was sick. Id.

Then, the ALJ re-examined the ME, asking him to list the impairments he had found upon his examination of the Plaintiff's medical records. [T. 76] The ME testified that the Plaintiff had a diagnosis of CFS, but stated that this diagnosis was obscured by the presence of depression which, he explained, usually had to be excluded prior to a diagnosis of CFS. Id. The ME also noted a diagnosis of fibromyalgia, but he characterized that diagnosis as "questionable," and expressed his conclusion that the Plaintiff's primary symptoms were chronic fatigue and depression. [T. 76-77]. The ME observed that the major criteria were not met for those symptoms, and explained that, in 1991, or 1992, the Plaintiff experienced an onset of fever, or a viral syndrome, which suggested the possibility of an infectious mono, that was ruled out. [T. 77] The ME further testified that the Plaintiff did have a viral syndrome and, since that time, she had exhibited symptoms of fatigue, but stated that, in order to diagnose CFS, depression had to be eliminated as a factor. Id. The ME added that the Plaintiff did certainly have other symptoms, which were minor criteria for CFS. Id. Thus, the ME concluded that it was a difficult diagnosis to make. Id.

The ME then stated that the Plaintiff did not meet, or equal, any Listing, but that she was functionally limited by fatigue. [T. 77] The ME opined that the Plaintiff's residual functional capacity ("RFC")¹⁴ would be sedentary, and that her psychiatric review disclosed that she was able to retain and follow simple instructions, was able to interact with fellow workers on a superficial, infrequent basis, was able to perform simple, routine, repetitive tasks, and was able to maintain pace and persistence. Id. The ME further testified that the Plaintiff probably had those impairments, and limitations, since her alleged onset date of January 1, 1994. Id.

14 RFC is a measure of what a claimant can do despite limitations. See, 20 C.F.R. § 404.1545.

The Plaintiff's attorney then examined the ME, and asked whether seeing an infectious disease specialist, like Dr. Kind, was appropriate for someone with suspected CFS. [T. 78] The ME replied that such a consultation was appropriate. Id. The ME also testified that evaluating whether the Plaintiff was disabled, in this instance, was difficult. Id. Counsel then referred to Dr. Kind's diagnosis of the Plaintiff, which included a diagnosis of CFS, and depression, and noted Dr. Kind's opinion that the Plaintiff's ability to maintain regular attendance in a job setting was severely impaired. Counsel then asked the ME whether that was a judgment about which reasonable doctors could disagree. Id. The ME responded that reasonable doctors could absolutely disagree. [T. 79].

The ME further testified that he saw nothing in the Record to suggest that the Plaintiff was a deliberate malingerer, or any suggestion that the Plaintiff had a somatiform anomaly, such that her problems were all in her head. [T. 79] Counsel then referred to the opinion of Dr. Shammash, in June of 1997, that the Plaintiff might be limited, in the future, to a decreased number of hours, and the ME observed that Dr. Shammash's opinion was within the realm of reason. [T. 79-80] Concluding his examination of the ME, the Plaintiff's attorney asked if Dr. Waterman's opinion, that the Plaintiff's ability to deal with work stresses was either poor, or nonexistent, was also within the realm of reason. [T. 80] The ME responded that the Record supported some of Dr. Waterman's conclusions, and he noted that Dr. Waterman had also expressed the opinion that the Plaintiff could interact with fellow workers, superficially. Id.

Finally, the Vocational Expert ("VE"), L. David Russell, testified. [T. 80]. The ALJ first provided the VE with a hypothetical which assumed as follows: a female, age 28 to 33 years of age, with education and work experience set forth in the Record, and with the impairments as stated by the impartial medical experts, which the ALJ listed as diagnoses of CFS, and depression, and a possibility of fibromyalgia, but with no diagnosis in the Record. [T. 81] The ALJ further asked the VE to assume that the hypothetical individual had been trying different medications, but currently did not have any prescriptions and, thus, no side-effects from medications should be assumed, and that she was further limited, as the ME testified, to sedentary level positions, and to simple tasks with only simple instructions, superficial and infrequent contacts with others, which were routine, repetitive and tangible in nature. [T. 81-82] The ALJ then asked the VE whether, assuming those limitations, the hypothetical individual could perform her past relevant work, and the VE responded that the individual would not be able to perform that work because the skill level, and level of public interaction, exceeded the hypothetical individual's exertional limitations. [T. 82].

The ALJ then asked the VE if there were other jobs in the region that the hypothetical individual could perform. [T. 82]. The VE opined that there were, testifying that, primarily, there were bench assembly and packaging jobs available, and that there would be approximately 56,000 such assembly jobs available in the United States, with about 7,000 of those falling within the hypothetical, and about 15,000 packaging jobs in the United States, with about 5,000 of those within the hypothetical. [T. 82-83]. The VE attributed the greater decline in the assembly jobs, which satisfied the hypothetical, as compared to the decline in packaging jobs, to the greater skill level required for some assembly positions, and stated that almost all packaging jobs were unskilled. [T. 83] The ALJ also asked the VE about employers' tolerance for unscheduled absences, and the VE responded that the tolerance of employers varied, but that three unscheduled absences a month would jeopardize one's employment in most instances. [T. 83].

Then, the ALJ referenced a residual functional capacity form, which indicated that the Plaintiff had a moderately severe inability to retain or maintain attention and concentration for extended periods, and had a severe inability to maintain regular attendance, complete a normal work day without interruptions from symptoms, complete a normal work week with interruptions, or perform at a constant pace without an unreasonable number and length of rest periods. [T. 83-84] The ALJ asked the VE to assume those additional restrictions, and inquired whether the hypothetical person could perform the assembly and packaging jobs that he had identified. [T. 84] The VE testified that the individual would not be able to perform those jobs. Id.

The Plaintiff's attorney next examined the VE, and asked whether, if the four referenced severely impaired limitations were only listed as moderately severe, the employment in the assembly and packaging jobs would be precluded, and the VE replied that most employment would be precluded. [T. 85] The Plaintiff's counsel then asked if only an individual's ability to maintain regular attendance was severely impaired, would employment be precluded. Id. The VE responded that employment would not be precluded by any one factor being severe, but stated that two or three of the classifications would jeopardize employment. Id. Counsel concluded his examination by expressing the Plaintiff's position that, because the VE testified that the Plaintiff could not perform her past relevant work, that the burden shifted to the Commissioner to prove that there was other work that the Plaintiff could perform. [T. 86] Counsel then argued that the Commissioner could not sustain that burden of showing that the Plaintiff could work on a sustained basis, eight hours a day, five days a week. Id. The Hearing was then adjourned. [T. 87].

C. The ALJ's Decision. The ALJ issued his decision on July 20, 1998. [T. 16-24]. As he was required to do, the ALJ applied the sequential, five-step analytical process that is prescribed by 20 C.F.R. § 404.1520.¹⁵ As a threshold matter, the ALJ concluded that the Plaintiff had not engaged in substantial gainful activity since the date of her alleged onset of disability. [T. 17-18].

15 Under the five-step sequential process, the ALJ analyzes the evidence as follows:

(1) whether the claimant is presently engaged in a "substantial gainful activity;" (2) whether the claimant has a severe impairment 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; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden then shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.

Simmons v. Massanari, 264 F.3d 751, 754-55 (8th Cir. 2001).
A claimant is disabled only if he is not engaged in substantial gainful activity; he has an impairment that limits his ability to perform basic work activities; and his impairment is either presumptively disabling, or he does not have the residual functional capacity to perform his previous work, and he cannot perform other work existing in the national economy.Id. at 754.

Next, the ALJ examined whether the Plaintiff was subject to any severe physical or mental impairments, which would substantially compromise her ability to engage in work activity. See, 20 C.F.R. § 404.1521. The ALJ found that the Plaintiff had severe depression, [T. 18], but concluded that the Plaintiff's CFS, obesity, and possible fibromyalgia, were not severe impairments. Id.

At the Third Step, the ALJ compared the Plaintiff's severe impairment with the impairments listed in Appendix 1, to Subpart P of the Regulations. See 20 C.F.R. § 404.1520 (d).¹⁶ The ALJ found that the Plaintiff's impairment did not meet, or equal, the criteria of any listed impairment. [T. 19].

16 Appendix 1 contains a listing of Impairments that identifies a number of different medical conditions and describes a required level of severity for each condition. If the required severity is met, the claimant is found disabled without considering vocational factors.

Next, the ALJ proceeded to determine the Plaintiff's RFC. [T. 16-19]. The ALJ conducted a credibility assessment of the Plaintiff's subjective complaint, that she could not perform any work activity, and concluded that the Plaintiff's complaint was not supported by objective medical evidence. [T. 22]. The ALJ then determined the Plaintiff's RFC to be as follows:

The claimant retains the residual capacity to lift/carry 10 pounds, sit 6 hours, and stand and walk a total of two hours in an eight hour day, but she is restricted to performing simple, routine, repetitive and tangible tasks and work which requires only brief, superficial contact with supervisors, co-workers and the public. The claimant retains the residual functional capacity to perform slightly less than the full range of sedentary work, as defined in the Social Security Regulations.

[T. 19].

Based on this RFC, the ALJ concluded that the Plaintiff did not retain the ability to perform her past relevant work. [T. 22].

The ALJ then proceeded to the Fifth Step, and properly acknowledged that the burden had shifted to the Commissioner of the Social Security Administration to prove that a significant number of jobs existed in the national or regional economy which the Plaintiff could perform. [T. 22]. The ALJ noted the VE's testimony, that persons having the functional limitations of the Plaintiff could work at some 7,000 bench assembly jobs, and 5,000 hand packaging jobs. Id. Finding the VE's testimony to be credible, and persuasive, the ALJ found that there existed a significant number of jobs, in the relevant economy, that the Plaintiff could perform. Id. As a result, the ALJ concluded that the Plaintiff was not disabled and, therefore, was not entitled to a period of disability or DIB. Id.

III. Discussion

A. Standard of Review. The Commissioner's decision must be affirmed if it conforms to the law and is supported by substantial evidence on the Record as a whole. See, Title 42 U.S.C. § 405 (g) see also, Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002); Qualls v. Apfel, 158 F.3d 425, 427 (8th Cir. 1998); Gallus v. Callahan, 117 F.3d 1061, 1063 (8th Cir. 1997). This standard of review is more than a mere search for the existence of evidence supporting the Commissioner's decision. See, Morse v. Shalala, 32 F.3d 1228, 1229 (8th Cir. 1994), citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91 (1951). Rather, the substantiality of the evidence must take into account whatever fairly detracts from its weight, see, Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); Newton v. Chater, 92 F.3d 688, 692 (8th Cir. 1996), and the notable distinction between "substantial evidence," and "substantial evidence on the record as a whole," must be observed. See, Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998). On review, a Court must take into consideration the weight of the evidence, apply a balancing test, and determine whether or not substantial evidence in the Record as a whole supports the findings of fact upon which a Plaintiff's claim was granted or denied. See, Loving v. Secretary of Health and Human Services, 16 F.3d 967, 969 (8th Cir. 1994); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989).

Substantial evidence means more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Moad v. Massanari, 260 F.3d 887, 890 (8th Cir. 2001); Jackson v. Apfel, 162 F.3d 533, 536 (8th Cir. 1998); Black v. Apfel, 143 F.3d 383, 385 (3rd Cir. 1998) Stated otherwise, "[s]ubstantial evidence is something less than a preponderance, but enough that a reasonable mind would conclude that the evidence supports the decision." Banks v. Massanari, 258 F.3d 820, 822 (8th Cir. 2001). Therefore, "if, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, we must affirm the denial of benefits." Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001), citingMapes v. Chater, 82 F.3d 383, 385 (8th Cir. 1996); see also, Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998); Scott v. Chater, 112 F.3d 367, 368 (8th Cir. 1997). Under this standard, we do not reverse the Commissioner even if this Court, sitting as the finder-of-fact, would have reached a contrary result. See, Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).

Consequently, the concept of substantial evidence allows for the possibility of drawing two inconsistent conclusions and, therefore, it embodies a "zone of choice," within which the Commissioner may decide to grant or deny benefits without being subject to reversal on appeal. See,Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994); see also, Haley v. Massanari, 258 F.3d 742, 746 (8th Cir. 2001) ("[A]s long as there is substantial evidence in the record to support the Commissioner's decision, we will not reverse it simply because substantial evidence exists in the record that would have supported a different outcome,Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995), or 'because we would have decided the case differently.'"), quoting Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001). Our review of the ALJ's factual determinations, therefore, is deferential, and we neither reweigh the evidence, nor review the factual record de novo. See, Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997); Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996).

B. Legal Analysis. In support of her Motion for Summary Judgment, the Plaintiff advances the following arguments:

1. The ALJ Failed to Give Proper Consideration to the Plaintiff's Own Subjective Claims of Impairment.

2. The ALJ's Hypothetical to the VE Failed to Fully Incorporate All of the Limitations of Her Alleged Impairments, Such that the VE Could Not Adequately Assess the Jobs Available to Her in the Regional Economy.

Given our recommendation, that this matter be remanded for reconsideration, and since the Plaintiff's objection to the ALJ's hypothetical are predicated on the same deficiencies as the Plaintiff cites in the ALJ's believability findings, we limit our discussion to the first issue — the Plaintiff's credibility.

1. Standard of Review. The governing law makes clear that credibility determinations are initially within the province of the ALJ. Driggens v. Bowen, 791 F.2d 121, 125 n. 2 (8th Cir. 1986); Underwood v. Bowen, 807 F.2d 141, 143 (8th Cir. 1986). As a finding of fact, the determination must be supported by substantial evidence on the Record as a whole. See, Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993).

To be legally sufficient, the ALJ must make an express credibility determination, must set forth the inconsistencies in the Record which led to the rejection of the Plaintiff's testimony, must demonstrate that all relevant evidence was considered and evaluated, and must detail the reasons for discrediting that testimony. See, Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996); Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995); Ricketts v. Secretary of Health, Education and Welfare, 902 F.2d 661 (8th Cir. 1990). These requirements are not mere suggestions, but are mandates that impose affirmative duties upon the ALJ. Johnson v. Secretary of Health and Human Services, 872 F.2d 810, 814 n. 3 (8th Cir. 1989).

The mode and method by which an ALJ must make and support a credibility finding, on the basis of subjective symptoms, has been firmly established in the Eighth Circuit by Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent history omitted), and its progeny. See, e.g., Ostronski v. Chater, supra at 418; Shelton v. Chater, supra; Jones v. Chater, 86 F.2d 823 (8th Cir. 1996). Factors which the ALJ must consider, in the evaluation of the Plaintiff's subjective symptoms, include the Plaintiff's prior work record and the observations of third parties, and of physicians, concerning:

1. the claimant's daily activities;

2. the duration, frequency, and intensity of the pain;

3. precipitating and aggravating factors;

4. dosage, effectiveness and side effects of medication; and

5. functional restrictions.

Polaski v. Heckler, supra at 1321-22.

The ALJ must not only consider these factors, but he must list them and explain the resolution of any demonstrable conflict or inconsistency in the Record as a whole. Cf., Jones v. Chater, supra at 826; Delrosa v. Sullivan, 922 F.2d 480 (8th Cir. 1991); Carlock v. Sullivan, 902 F.2d 1341 (8th Cir. 1990)

It is well-settled that an ALJ may not disregard a claimant's subjective complaints of pain or other subjective symptoms solely because there is no objective medical evidence to support them. Ostronski v. Chater, supra at 418; Jones v. Chater, supra; but cf., Johnston v. Shalala, supra at 451 (8th Cir. 1995) (ALJ should consider absence of objective medical basis as a factor to discount the severity of a claimant's subjective complaints of pain). It is also firmly established that the physiological, functional, and psychological consequences of illness, and of injury, may vary from individual to individual. Simonson v. Schweiker, 699 F.2d 426 (8th Cir. 1983). For example, a "back condition may affect one individual in an inconsequential way, whereas the same condition may severely disable another person who has greater sensitivity to pain or whose physical condition, due to * * * general physical well-being is generally deteriorated." O'Leary v. Schweiker, 710 F.2d 1334, 1342 (8th Cir. 1983); see also, Landess v. Weinberger, 490 F.2d 1187 (8th Cir. 1974). Given this variability, an ALJ may discredit subjective complaints of pain only if those complaints are inconsistent with the Record as a whole. Taylor v. Chater, 118 F.3d 1274, 1277 (8th Cir. 1997); Johnson v. Chater, supra at 944.

Nevertheless, as the decisions of this Circuit make clear, the interplay of the Polaski factors in any given Record, which could justify an ALJ's credibility determination with respect to a Plaintiff's subjective allegations of debilitating symptoms, is multi-varied. For example, an individual's failure to seek aggressive medical care militates against a finding that her symptoms are disabling. Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995); Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994); Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988). By the same token, "[i]nconsistencies between subjective complaints of pain and daily living patterns may also diminish credibility." Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1988); see also, Lawrence v. Chater, 107 F.3d 674, 676-77 (8th Cir. 1997) (ALJ may discredit complaints that are inconsistent with daily activities); Clark v. Chater, 75 F.3d 414, 417 (8th Cir. 1996); Shannon v. Chater, 54 F.3d 484, 487 (8th Cir. 1995). Among the daily activities, which counter indicate disabling pain, are: a practice of regularly cleaning one's house, Spradling v. Chater, 126 F.3d 1072, 1075 (8th Cir. 1997);Chamberlain v. Shalala, supra at 1494; cooking, id. and grocery shopping, Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996). Although daily activities, standing alone, do not disprove the existence of a disability, they are an important factor to consider in the evaluation of subjective complaints of pain. Wilson v. Chater, supra at 241.

It is also settled law that, "when an ALJ fails to believe lay testimony about a claimant's allegations of pain, he should discuss the testimony specifically and make explicit credibility determinations."Prince v. Bowen, 894 F.2d 283, 286 (8th Cir. 1990); Smith v. Heckler, 735 F.2d 313, 317 (8th Cir. 1984) ("We have held that a failure to make credibility determinations concerning such evidence requires a reversal and remand."); but cf., Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992) ("While it is preferable that the ALJ delineate the specific credibility determinations for each witness, an 'arguable deficiency in opinion-writing technique' does not require us to set aside an administrative finding when that deficiency had no bearing on the outcome."), citing Benskin v. Bowen, supra at 883.

b. Legal Analysis. The Plaintiff challenges the ALJ's determination that her subjective complaints of pain and fatigue, to the extent that they were indicative of her inability to perform any work, were not credible. The importance of this credibility finding, in the context of CFS, can hardly be overstated. The Social Security Administration's Program Operations Manual System (1993) ("POMS") has established a policy for the evaluation of claims premised on CFS, which states in pertinent part:

Chronic Fatigue Syndrome (CFS) * * * is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically.

CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process.

POMS § 24575.005 (1993); see also § DI 24515.007 (1997) (the same); Dornack v. Apfel, 49 F. Supp.2d 1129, 1139-40 (D. Minn. 1999);Rose v. Shalala, 34 F.3d 13, 16 (1st Cir. 1994); Bischof v. Apfel, 65 F. Supp.2d 140, 145 (E.D.N.Y. 1999).

Since CFS is commonly diagnosed on a symptomatic basis, rather than by the application of objective medical testing, the subjective representations of a claimant take on special significance, as do the corresponding credibility assessments of the ALJ. See, Dornack v. Apfel, supra at 1140; Fragale v. Chater, 916 F. Supp. 249, 253 (W.D.N.Y. 1996), citing Reed v. Secr'y. of Health Human Services, 804 F. Supp. 914, 918 (E.D. Mich. 1992).

The appraisal of the debilitating effects of CFS has proved as mettlesome to the medical community, as it has to the Courts which have been called upon to review a claimant's entitlement to benefits for a CFS-generated disability. See, e.g., Dornack v. Apfel, supra (remanding the ALJ's decision on grounds of the ALJ's credibility determination);Abdus-Sabur v. Callahan, 181 F.3d 79, 1999 WL 551133 at **4 (1st Cir., July 27, 1999) [Table Decision]; Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998) (reversing District Court's affirmance of the Commissioner's denial of benefits to claimant suffering from CFS); Adams v. Chater, 93 F.3d 712 (10th Cir. 1996) (same); Rose v. Shalala, 34 F.3d 13 (1st Cir. 1994) (same); Sisco v. United States Department of Health and Human Services, 10 F.3d 739 (10th Cir. 1993); Cohen v. Secretary of Department of Health and Human Services, 964 F.2d 524 (6th Cir. 1992); Tomson v. Halter, 2001 WL 213758 at *11 (D. Or., February 7, 2001); Lunan v. Apel, 2000 WL 287988 at *6 (N.D.N.Y., March 10, 2000) (reversing and remanding the ALJ's decision on grounds of the ALJ's credibility determination);Aidinovski v. Apfel, 1998 WL 864548 (N.D. Ill. 1998) (reversing Commissioner's denial of benefits to a claimant suffering from CFS);Olson v. Apfel, 17 F. Supp.2d 783 (N.D. Ill. 1998) (same); Hilton v. Apfel, 1998 WL 241616 (S.D.N.Y. 1998) (same); Davis v. Callahan, 985 F. Supp. 907 (S.D. Iowa 1997) (same); but see, Mastro v. Apfel, 270 F.3d 171, 179 (4th Cir. 2001) (affirming denial of disability benefits, in a CFS case, where the "record discloses a hodgepodge of medical observations and treatments with annual gaps * * *"); Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001) (concluding that "the medical evidence available, although supporting findings of impairments, did not support * * * the limitations [the plaintiff] allegedly suffered");Hirshfeld v. Apfel, 159 F. Supp.2d 802, 811 (E.D. Pa. 2001) (holding that the record clearly supported the ALJ's credibility findings, and holding that the objective medical evidence did not support the plaintiff's claim that she was disabled); Davis v. Massanari, 2001 WL 1175093 at *9 (S.D. Ind., September 6, 2001) (finding that substantial evidence supported the ALJ's credibility determination, which was made with consideration given to the objective medical evidence) Almost invariably, at the crux of these decisions is the propriety of the ALJ's credibility assessments, and the tension between those assessments — which have tended to discredit the claimant's assertion of an inability to be gainfully employed — and the opinions of treating physicians who, with varying regularity, have concluded that the claimant was functionally disabled.

Quite plainly, the determinations are fact-laden and, quite properly, such determinations are vested in the evidence weighing role of the factfinder — the ALJ. We do not challenge that vestiture nor, frankly, are we positioned to challenge what may, ultimately, prove to be a proper result by the ALJ, here. Our concern is not with the result reached, but with the process employed, for we are unable to fulfill our judicial duty, in reviewing the Record for substantial evidence, if the evidence weighing process of the ALJ is not fully disclosed. In our considered review, having parsed the Record thoroughly, the ALJ appears to have employed a cafeteria-style analysis, in which he draws from the factual expanse presented, those specific facts which he prefers, to the exclusion of the rest. Left unaddressed are those facts which conflict with the result the ALJ has reached.

The ALJ determined that the Plaintiff's subjective complaints of impairment were not supported by the objective medical evidence. The Plaintiff argues that, by merely determining that objective medical evidence did not support the Plaintiff's complaints, the ALJ did not conduct a proper credibility assessment and, therefore, he improperly discredited her subjective complaints, of course, by definition, CFS commonly lacks indisputable objective findings. See, Dornack v. Apfel, supra at 1140-42; Davis v. Massanari, supra at *9, citing Rose v. Shalala, supra at 18-9; Olson v. Apfel, supra at 789-90; see also Lunan v. Apel, supra at 4 (stating that "a diagnosis of CFS may be based solely upon the claimant's reported symptoms once other causes for the symptoms have been ruled out")

"At the same time, the ALJ is required by law to consider whether there are objective findings supporting the claimant's subjective symptoms."Id., citing Rose v. Shalala, supra at 19; see also, Lunan v. Apel, supra at 4 (explaining that, "[o]n the one hand, the Commissioner's regulations emphasize that a claimant's impairments must be supported by objective medical evidence," citing 20 C.F.R. § 404.1508, 404.1512(b)(1), 404.1527, 404.1529(b)); Buxton v. Halter, supra at 773 (noting that "[s]ubjective complaints of 'pain or other symptoms shall not alone be conclusive evidence of disability.'"), quoting Title 42 U.S.C. § 423 (d)(5)(A). "Thus, in cases of chronic fatigue syndrome, the absence of objective findings cannot be treated as controlling, but the law requires the ALJ to consider the totality of the evidence, including the (lack of) objective findings." Id., citing Rose v. Shalala, supra at 19.

In an effort to recite the symptoms claimed by the Plaintiff, the ALJ noted the following:

The claimant contends that she is unable to work due to chronic fatigue syndrome. She claims that she has pain in all of her muscles and joints, and that there is no treatment to relieve her pain. She asserts that she has difficulty lifting, standing, bending and taking a shower. She further contends that she is unable to concentrate, that she has severe fatigue, and that she has difficulty sleeping. She reported to the consulting psychiatrist that she lies in bed 18 hours a day and that she does not perform many household chores. She stated that she performs slowly because she is tired all of the time. She reported that she feels depressed, that she goes to church twice a month, that she does not date, or have any hobbies.

[T. 21-22].

The ALJ then concluded that "the objective medical evidence does not support the claimant's allegations." [T. 22]. To support that conclusion, the ALJ observed:

The claimant reported that she is in severe pain, but she takes only over the counter medication. She reported to the consulting psychologist that she has two friends with whom she talks with [sic] on the telephone every day [sic]. In an activities of daily living questionnaire, she stated that she is able to perform necessary daily functions like eating and cleaning after herself. She stated that she will go for a walk with her neighbor and baby sit for her sister's children occasionally. She reported that she is able to drive, prepare meals and wash her own laundry. She stated that she lives in her apartment by herself and that she gets along well with her family and friends. In addition, she reported that she enjoys reading and watching television. The Administrative Law Judge finds that the above cited residual functional capacity is consistent with the medical evidence and claimant's activities of daily living.

[T. 22].

By appearance, the ALJ had reference to an "Activities of Daily Living Questionnaire," which was prepared by the Plaintiff on October 27, 1996. [T. 151-56]. In that questionnaire, the Plaintiff also stated that she felt "extremely tired and fatigued most of the days," and had suffered other symptoms, including: "fevers, sore throats, nausea, diarrhea, swollen tongue, poor concentration, depression, muscle and joint aches, hyper sensitivity to heat, cold and light." [T. 151]. She went on to describe her appearance, personal hygiene, and grooming, as "not very good," stating that she showered less than she had done prior to the onset of her impairment, did not brush her hair or get dressed, and rarely wore make-up or jewelry. Id. The Plaintiff added that she had not been to the dentist in a few years, and reported gaining seventy pounds, which she attributed to her lack of exercise since the onset of her symptoms. Id.

The Plaintiff explained further that, on a lot of days, she lied around, "doing virtually nothing, and wasting time." [T. 151]. She stated that she talked on the phone for about an hour daily, watched television for about one to four hours daily, read about an hour each day, and spent the rest of her day tending to necessary daily functions like eating and cleaning up after myself. Id. The Plaintiff indicated that, "[o]nce in a while I go grocery shopping or go for a walk with my neighbor," and "[a]bout 4 times a month I watch my sisters kids while she's at work." Id. Although the Plaintiff indicated that she prepared her own meals, she explained that she usually cooked "easy things," and did not make a big mess, adding that she rarely used the stove burners or oven. [T. 152]. The Plaintiff also stated that she never played games, attended sporting activities, volunteered, dined out, or went to movies, classes, or school. [T. 154]. Only on a monthly basis did the Plaintiff engage in cleaning, shopping, watching children, attending church, visiting friends, or exercising. Id.

The ALJ failed to address the totality of the Plaintiff's statements but, instead, took segments of the Plaintiff's responses out of context, while selectively recognizing other parts of her statements. Moreover, the ALJ failed to address other statements, which were made by the Plaintiff to her treating physicians, and at the Hearing. While we recognize that it is expedient for the ALJ to cite only that evidence which supported his factfinding, when dealing with the complexity, and enigma of CFS, the ALJ must consider the entirety of the Record, as instructed by the POMS, so as to render a credibility assessment of the Plaintiff's subjective complaints, which is the product of a thorough, and rigorous appraisal of the entire Record. Upon our close review, we are satisfied that the ALJ failed in this respect, as his decision does not adequately weigh the competing evidentiary showings.

Without attempting to exhaustively catalogue what we regard as critical deficiencies in the ALJ's assessment of the Record, we offer the following examples. In the parlance of Paul Harvey, "here is the rest of the story." On November 12, 1996, shortly after the Plaintiff completed her activities questionnaire, she reported to Dr. Karayusuf that she was in bed eighteen hours a day, bathed only once or twice a week, and changed her clothing only once every three days. [T. 237-38]. The Plaintiff added that she did not perform any household chores, except for washing the dishes every few days, but she stated that she drove and, on occasion, went to the grocery store to make specific purchases. [T. 238]. The Plaintiff also reported that she went to church only once or twice a month, and noted that her concentration was limited. Id. She went on to report that she had no hobbies, did not date, did not read, and watched television several hours each day, but often lacked concentration. Id. The Plaintiff advised that she had a few friends, with whom she spoke on the telephone everyday. Id. At the time, the Plaintiff was living with her sister, and her sisters' three children. [T. 237].

Even though the ALJ was impressed by the fact that the Plaintiff lived alone in an apartment, albeit at the time that she completed her activity questionnaire, he completely failed to mention that, at the Hearing, the Plaintiff testified that, for the preceding seven months, she had been living in a group home, and that, prior to that, she lived with various other people with whom she experienced less than fully functional relationships. [T. 48-9]. Also at the Hearing, the Plaintiff testified that she had concentration problems when she attempted to read, but did have a Bible in her room, as well as books on recovering from CFS, and college math textbooks, from which the Plaintiff occasionally attempted to complete math problems, but with difficulty. [T. 62]. The Plaintiff further reported that she rarely watched television. [T. 63].

When asked about her daily activities, the Plaintiff described, at length, the difficulties she experienced in getting up by 9:00 o'clock a.m., and testified that she rarely accomplished that feat, explaining that she often returned to bed after eating breakfast. [T. 63-4]. The Plaintiff admitted to performing some chores, like laundry, and explained that she sometimes cared for her sister's children, but noted that she did so despite feeling poorly, and sometimes had to cancel such engagements. [T. 65, 72]. The Plaintiff also testified that she walked only twice a month. [T. 75-76].

The ALJ completely failed to acknowledge, let alone consider, any of the foregoing statements of the Plaintiff, of course, we acknowledge some inconsistencies in the Plaintiff's self-reports of her daily activities but, when we consider the length of time under consideration, the total picture requires an assessment of activities in continuum, and not within a limited slice of time. While the details of her daily activities changed, from time to time, the overall limitations remained fairly constant.

Without additional support from the Record, we are not impressed that the Plaintiff's performance of "necessary daily functions like eating," cleaning, walking a few blocks, seeking the companionship of her nieces and nephews for a few hours at a time, driving, limited cooking, laundry, very limited reading, and watching television, assertedly without comprehension, critically undermine the Plaintiff's credibility. See, Dornack v. Apfel, supra at 1140-41 (remanding case in which the ALJ found that the plaintiff's daily activities, which included driving, dusting, cooking, cleaning, making the bed, light shopping, and laundry, were inconsistent with the plaintiff's subjective complaints); Cohen v. Dep't of Health and Human Servs., 964 F.2d 524, 530 (6th Cir. 1992) (finding that a claimant with CFS should not be penalized for attempting to lead a normal life in spite of her limitations); Sisco v. United States Dep't of Health and Human Servs., 10 F.3d 739, 741-43 (10th Cir. 1993) (finding unimpressive the ALJ's recitation that the Plaintiff was able to dress, shower, eat breakfast, clean the house, wash dishes, dust, watch television, read, and walk one block); Tomson v. Halter, 2001 WL 213758 at *7-8 (D. Or., February 7, 2001) (holding that evidence that the plaintiff performed household chores, watched television, attempted crossword puzzles, drove, shopped, and read did not discredit the plaintiff's testimony); but see, Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001) (finding that the plaintiff's claim that she could not work was conflicted by the her testimony that she shopped, cleaned, cooked, drove, and exercised); Hirshfield v. Apfel, 159 F. Supp.2d 802, 811 (E.D. Pa. 2001) (stating that the plaintiff's exercise and "numerous vacations" were inconsistent with her claims).

Moreover, the Plaintiff's self-reported physical limitations, as contained on the activity questionnaire that the ALJ employed to discredit her subjective complaints, reflect the Plaintiff's activities on a "good" day and, if her other statements, and her complained of symptoms — which the ALJ did not acknowledge — are credited, the prospect of the Plaintiff enduring substantial gainful activity on a "bad" day would be conjectural. See, Dornack v. Apfel, supra at 1141.

In finding that the Plaintiff's CFS was not severe, the ALJ did reference some of the Plaintiff's medical history but, in our review, it again appears that the ALJ selectively summarized the Plaintiff's clinical records, without recognizing those entries which corroborate her subjective complaints. The ALJ first noted that the Plaintiff's physical examinations were relatively unremarkable, except for the Plaintiff's subjective complaints of tenderness. [T. 18]. To support this finding, the ALJ cited to Dr. Hulbert's examination of the Plaintiff, on February 20, 1997, in which Dr. Hulbert stated that the Plaintiff's examination was unremarkable, that she had normal strength in her upper extremities, and that her previous chemistry profiles were normal. [T. 18, 242].

The ALJ then referenced the Plaintiff's visit to Dr. Krzmarzick, during which the Plaintiff reported that she had no current physical complaints other than generalized fatigue — which, of course, is the principal symptom of CFS. [T. 18]. Further, the ALJ noted the Plaintiff's examination, by Dr. Shammash, on February, 18, 1998, who advised that the Plaintiff was moderately obese, that her mood was good, that she was not tearful, that she was not overwhelmingly fatigued, that her joints were unremarkable, that she had normal sensation and full grip strength, and that she had only a few tender points. [T. 18-9].

We do not deny that these references are in the Record and that, if that were the Record alone, the ALJ's believability analysis would have been adequate, however, the ALJ's summarization is critically incomplete. Again, "the rest of the story." The ALJ failed to note, for example, that, on April 27, 1995, Dr. Brandenhoff diagnosed the Plaintiff with CFS, [T. 218], and, although the ALJ cited to notes in the Record by Dr. Krzmarzick, and Dr. Hulbert, he failed to recognize that Dr. Krzmarzick, on October 25, 1995, diagnosed the Plaintiff with probable CFS, [T. 257], or that Dr. Hulbert, on August 8, 1996, was satisfied that the Plaintiff satisfied most of the major and minor criteria for CFS, and that she continued to have disabling fatigue, poor concentration, struggles in the accomplishment of simple tasks, and complaints of muscle burning. [T. 249].

Again, while the ALJ referenced reports by Dr. Shammash, he failed to consider, at least as we read his decision, Dr. Shammash's opinion, that was expressed on June 18, 1997, that the Plaintiff may be limited to working only a decreased number of hours per day, and that the Plaintiff reported being "extremely fatigued," on December 10, 1997. [T. 286, 349-50]. Further, while relying on the evaluations of Dr. Waterman, the ALJ failed to mention that Dr. Waterman also opined that the Plaintiff's cognitive complaints were identical to the complaints seen globally in patients with CFS. [T. 20, 357, 359-61].

Most significantly, the ALJ cited the opinion of Dr. Alan Kind, who was a treating physician, by noting that Dr. Kind had reported the Plaintiff's neck, chest, heart, abdomen, and extremities, were unremarkable upon examination. [T. 19, 412]. However, the Plaintiff also reported musculoskeletal achiness, which Dr. Kind regarded as consistent with fibromyalgia. Id. As related by the ALJ, Dr. Kind noted that the Plaintiff had a history that suggested fibromyaglia, CFS, and depression, and concluded that the Plaintiff was disabled. Id. The ALJ discredited Dr. Kind's opinion, however, and stated:

[T]he issue of whether a claimant is disabled is an issue which is reserved solely for the Administrative Uaw Judge. Therefore, Dr. Kind's opinion regarding the claimant's disability is given no weight. Furthermore, Dr. Kind completed a chronic fatigue syndrome questionnaire regarding the claimant's symptoms. This questionnaire is given little weight since Dr. Kind did not support his conclusions with objective medical evidence.

[T. 19].

We find the ALJ's assessment of this medical opinion to be particularly troubling. First, the ALJ has not accurately, or comprehensively, described Dr. Kind's medical findings. [T. 406-12]. The ALJ failed to mention that, upon her examination by Dr. Kind, the Plaintiff complained of pain in her shoulders, neck, and upper back, as well as headaches, sore throats, trouble sleeping, and difficulty with her memory and concentration. [T. 411]. Dr. Kind also noted the Plaintiff's estimate that she was functioning at 20-40% of her normal capacity. Id. The ALJ further omitted Dr. Kind's medical assessment that the Plaintiff's history of CFS was consistent with her complaints. [T. 412]. The ALJ failed to mention Dr. Kind's medical judgment that the Plaintiff was severely impaired in her ability to maintain regular attendance, complete a normal workday, or work week, and perform at a consistent pace; and was moderately impaired in her ability to maintain attention and concentration for extended periods. [T. 408]. The VE opined that such a finding would preclude the Plaintiff from performing the jobs that he listed that she could perform, and yet these opinions are rejected as not having been fully substantiated. [T. 84].

To be sure, Dr. Kind's opinions were not fully elaborated upon, but the ALJ appears to have missed that the Questionnaire completed by Dr. Kind contains the criteria for a medical finding of CFS which have been established by the National Centers for Disease Control. [T. 406]; see also, Abdus-Sabur v. Callahan, supra at **2. We understand that the ALJ need not accede to Dr. Kind's clinical judgment, but his categorical dismissal of that judgment is most perplexing. In 1999, the Defendant promulgated a ruling — SSR 99-2P¹⁷ — which addresses the complexities of proof in CFS claims. The Ruling addresses "Treating and other medical sources," as follows:

17 Both parties have cited to SSR 99-2P, without reference to whether the Ruling is applicable to this case, given the fact that the Ruling did not become effective until April 30, 1999, and the ALJ's decision was issued prior to that date. See, SSR-99-2P, 1999 WL 271569 at *8 (S.S.A. 1999) of course, for reasons known but to the Appeals Council, this case remained under the review of that body, until its decision to deny further review on September 28, 2001, over two years after the Rulings effective date. Since the Ruling is described, in its promulgation, as doing no more than to restate and clarify" the policies of the Defendant on CFS claims for disability, we have no hesitancy in discussing the contents of that Ruling here. See, SSR-99-2P, supra at *1.

In evaluating credibility, the adjudicator should ask the treating or other medical source(s) to provide information about the extent and duration of an individual's impairment(s), including observations and opinions about how well the individual is able to function, the effects of any treatment, including side effects, and how long the impairment(s) is expected to limit the individual's ability to function. Opinions from an individual's medical sources, especially treating sources, concerning the effects of CFS on the individual's ability to function in a sustained manner in performing work activities or in performing activities of daily living are important in enabling adjudicators to draw conclusions about the severity of the impairment(s) and the individual's RFC. * * *.

SSR 99-2P, 1999 WL 271569 at *7 (S.S.A. 1999).

By our reckoning, the areas of inquiry, that the Ruling commends to the ALJ, are the same, or very similar, to the inquiries addressed in Dr. Kind's questionnaire. If the responses of Dr. Kind, as the Plaintiff's "treating source," were not as fully substantiated, and did not specifically inform the ALJ on the issue of CFS, and its impact upon the Plaintiff, then, according to the Ruling, the ALJ "should ask the treating * * * source to provide information about the extent and duration of an individual's impairments, and the like. Plainly, the opinions of this treating source were not factual entrees that the ALJ preferred. To reject that medical opinion, and other clinical findings not consistent with a denial of disability, on the ground that the findings, or opinion, is not predicated upon "objective findings," effectively precludes the Plaintiff from obtaining benefits at the outset. As noted, by definition, CFS lacks objective findings. See Dornack v. Apfel, supra at 1141-43; Sisco v. United States Dep't of Health and Human Servs., supra at 743-44; Davis v. Massanari, supra at *9, citing Rose v. Shalala, supra at 18-9; Olson v. Apfel, supra at 789-90. see also Lunan v. Apel, supra at 4 (stating that "a diagnosis of CFS may be based solely upon the claimant's reported symptoms once other causes for the symptoms have been ruled out"). Thus, the ALJ's decision appears to be based, at least in part, on this fundamental misconception, if not legal error.

As the Sixth Circuit Court of Appeals explained, in Sisco v. United States Dep't of Health and Human Servs., supra at 744, "there is no 'dip-stick' laboratory test for chronic fatigue syndrome." The Court further stated that the "Plaintiff's treating physician identified the clinical technique used by the medical community to diagnose chronic fatigue syndrome," and noted that the "Plaintiff's treating physician stated that his diagnosis was reached under the guidelines established by the National Centers for Disease Control." Id. In concluding, the Court explained:

Although this type of clinical diagnostic method may not be as dramatic or impressive to a layman as a "dipstick" laboratory test, it is the technique presently used and accepted by the medical community. Section 223(d)(5)(A) of the Social Security Act does not require more. In the ALJ's mind, chronic fatigue syndrome may not be a legitimate disease until it can be diagnosed in a laboratory setting. However, [the ALJ ] cannot substitute his lay opinion for that of Congress, the Plaintiff's doctor, and the entire medical community.

Id.

While the ALJ pinioned his conclusion, that the Plaintiff's experience with CFS did not constitute a "severe impairment," on the testimony of the ME, we find that reliance dubious. According to the ALJ, "[The ME] testified that the claimant had depression, chronic fatigue syndrom and possible fibromyalgia," and "[h]e stated that the claimant's chronic fatigue syndrome was secondary to and obscured by her depression." [T. 29]. We do not read the ME's testimony so indulgently. In this respect, the ME testified, as follows:

The claimant has several things, Your Honor. I think it's hard to separate them all. The diagnosis of the chronic fatigue syndrome was made. That's kind of obscured by the presence of the depression which is usually it has to be excluded in making a diagnosis of CFS. There is some history of depression which has been very, primarily or secondary to the fatigue syndrome.

[T. 77].

We have grave difficulty in inferring much from this testimony and, read in conjunction with the cross-examination, we are unable to conclude that the ME's testimony, as recondite as it is, necessarily overrides the medical findings to the contrary.

In sum, we are convinced that the exacting regimen, by which disability claims are analyzed, was not employed here. We are mindful that where, as here, the etiology, treatment, and course, of a disease are scientifically elusive, a disciplined analytical approach can be frustratingly difficult to accomplish. Nevertheless, we are persuaded that the ALJ did not adequately assess the conflicting evidence — in no small part he failed to acknowledge that evidence — and the Record was not fully and responsibly developed, and the matter should be remanded to allow a full and informed exploration of the Plaintiff's claim.

To the Plaintiff, we suspect that our recommendation of remand can be translated into further delay, but we are not persuaded that the evidence, in its current state, and particularly the medical opinion evidence, currently allows an award of benefits to her. She has been able, at least as shown in some portions of the Record, to accommodate her fatigue in ways that may be compatible with substantial gainful activity, and in other segments of the Record, she has not. Moreover, we are mindful that, well in advance of his claim for benefits, she appears to have been orchestrating medical support for a claim, with an insistence which may belie the state of fatigue she claims. Nevertheless, we are unable to reach the merits of her claim, in view of the state of the Record, and the ALJ's less than full assessment of the conflicting evidence. In the first instance, the reconciliation of that evidence is the duty of the ALJ, and not of this Court. Thus, a remand is required, and that is our recommendation.

NOW, THEREFORE, It is —

RECOMMENDED:

1. That the Plaintiff's Motion [Docket No. 15] for Summary Judgment be denied.

2. That the Defendant's Motion [Docket No. 17] for Summary Judgment be denied.

3. That the matter be remanded to the Commissioner for further proceedings in accordance with the views expressed in this Report.

4. That, pursuant to the holding in Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), Judgment be entered accordingly.

NOTICE

Pursuant to Federal Rule of Civil Procedure 6(a), D. Minn. LR1.1(f), and D. Minn. LR72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties by no later than February 21, 2003, a writing which specifically identifies those portions of the Report to which objections are made and the bases of those objections. Failure to comply with this procedure shall operate as a forfeiture of the objecting party's right to seek review in the Court of Appeals.

If the consideration of the objections requires a review of a transcript of a Hearing, then the party making the objections shall timely order and file a complete transcript of the Hearing by no later than February 21, 2003, unless all interested parties stipulate that the District Court is not required by Title 28 U.S.C. § 636 to review the transcript in order to resolve all of the objections made.