Opinion
No. C00-4014-MWB
January 11, 2001
REPORT RECOMMENDATION
I. INTRODUCTION
The plaintiff Sheila Littsen ("Littsen") appeals the denial by the administrative law judge ("ALJ") of Title II disability insurance benefits ("DI") and Title XVI supplemental security income benefits ("SSI"). Littsen argues the ALJ erred in (1) improperly evaluating Littsen's subjective complaints, (2) relying on an incomplete hypothetical question, (3) reaching an unsupported conclusion that Littsen could perform a job "with a sit/stand option," and (4) substituting his medical opinion for the opinions of a medical expert. Thus, Littsen argues, she is entitled to an award of benefits. The Commissioner resists each of Littsen's claims, asserting the ALJ's decision was based on substantial evidence in the record.
II. PROCEDURAL AND FACTUAL BACKGROUND A. Procedural Background
Littsen filed applications for DI and SSI benefits on December 30, 1996, alleging a disability onset date of March 15, 1995. (R. 80-82, 390-92) The applications were denied initially (R. 61-64), and upon reconsideration (R. 72-76). Littsen then requested a hearing, which was held before ALJ Donald R. Holloway on April 1, 1998, in Sioux City, Iowa. (R. 25-58) Attorney Wil Forker represented Littsen at the hearing. Littsen and Vocational Expert ("VE") Jeff Johnson appeared and testified at the hearing.
On May 22, 1998, the ALJ ruled Littsen was not entitled to DI or SSI benefits. (R. 428-450) The Appeals Council of the Social Security Administration denied Littsen's request for review on December 30, 1999 (R. 6-7), making the ALJ's decision the final decision of the Commissioner.
Littsen filed a timely complaint on February 4, 2000, seeking judicial review of the ALJ's ruling. (Doc. No. 3) Pursuant to Administrative Order #1447, entered September 20, 1999, by Chief Judge Mark W. Bennett, this matter was referred pursuant to 28 U.S.C. § 636(b)(1)(B) to the undersigned United States Magistrate Judge for the filing of a report and recommendation. Littsen filed a brief supporting her claim on June 1, 2000. (Doc. No. 9) On July 25, 2000, the Commissioner of Social Security filed his brief. (Doc. No. 10) The court now deems the matter fully submitted, and turns to a review pursuant to 42 U.S.C. § 405(g) of Littsen's applications for benefits.
B. Factual Background 1. Introductory facts and Littsen's daily activities
Littsen is seeking benefits for a disability due to a history of back problems and depression. Littsen obtained a G.E.D. in 1980. (R. 29) At the time of the hearing in April 1998, she was 38 years old, divorced, and living with her boyfriend and three teenage children. (R. 29-30, 45) Littsen stopped working on March 20, 1985, when she left her job as a cashier at a self-service gas station to have back surgery because of a work-related back injury. (R. 29-31) The surgery took place on March 29, 1985. (R. 31)
Littsen testified the surgery was not completely successful, and she continued to have pain in her back, neck, arms, and legs. (R. 31-32) According to Littsen, the pain in her back is mostly in her lower back, and never goes away. (R. 32) The pain is present when she wakes up in the morning, and gets worse throughout the day and with activity. ( Id.) The pain starts out dull, and as the day goes on, it becomes sharp. (R. 32) It then extends up to her neck and into her arms, primarily into her left arm. (R. 32-33)
Littsen testified that three or four times a week, she has problems rotating her neck, particularly when she does any lifting, cooking, or dishwashing. (R. 33-34) After walking about two blocks, she must stop to rest. (R. 34) She can only sit for about a half hour before she has to get up and walk around. ( Id.) She can stand for about fifteen or twenty minutes before the pain becomes intense. (R. 43) Her most comfortable position is lying down, but she only can lay down for about three hours before she has to sit up or stand. (R. 35, 42) She cannot sleep through the night, and has to get up about twice each night. ( Id.) On occasion, she has back spasms, which she treats with hot baths. (R. 41) She uses a heating blanket on her back every day. (R. 43) She tried back exercises for three months, but they made her back worse. (R. 42)
She testified she takes prescription medication for her back pain every day. (R. 36-37) About three years prior to the hearing, her doctor prescribed Serzone for depression. (R. 37) Even though there were no side effects from the depression medication, she only took it steadily for six months. ( Id.) At the time of the hearing, she was taking the depression medication only when she felt she needed it. ( Id.) She described the symptoms of her depression as not being able to get out of bed, continuous crying, and the inability to handle her children. ( Id.)
Littsen testified she takes "Ampicillin" for her back pain, prescribed by Dr. Ellis. (R. 36-37) However, Ampicillin is "a semisynthetic penicillin"; i.e., an antibiotic. ( See, e.g., Physicians' Desk Reference (50th ed. 1996) (" PDR") 2764, "Omnipen.") Littsen's records indicate Dr. Ellis prescribed Amitriptyline for Littsen's back pain ( see R. 407, "Amitriptyline . . . for back pain"), and it appears she may have confused the two drug names. Notably, Amitriptyline is an antidepressant. ( See, e.g., PDR 2839, "Elavil"; 1757-58, "Triavil"). Littsen also used a TENS unit ( see, e.g., R. 408). Although her records indicate Dr. Ellis tried other antidepressants, such as Serzone and Wellbutrin ( see R. 373, 408), and treated Littsen for flu and asthma symptoms (s ee R. 327, 373-74), the record does not indicate Dr. Ellis prescribed any other medication for Littsen's pain.
Littsen called the drug "Serpone." Her records indicate Dr. Ellis prescribed Serzone, an antidepressant. ( See R. 373; PDR 771)
She also had a kidney removed at a young age, but the only continuing effect was that the doctors had to be careful in prescribing medication. (R. 37-38)
Littsen said on a typical day, she gets up between 6:00 a.m. and 7:30 a.m., gets the children ready for school, drives them to school at 7:30 a.m., and returns home at about 7:45 a.m. (R. 39) It takes her about an hour to get dressed in the morning because of her back pain. (R. 44) She then sits for awhile, does her chores, and lays down and watches television for the rest of the day. ( Id.) She does not often visit friends or engage in activities with the children. (R. 39-40) She plays bingo about once a month, but has to get up and move around about every half hour. (R. 44) Her activities including cooking, picking up the house, and driving, but on some days she is unable to drive or ride in a car because of pain and shaking in her left leg. (R. 35-36) She does not take any long car trips. (R. 36)
Littsen stated she has not been treated for depression, but has received individual and family therapy for problems arising out of a divorce that took place soon after her surgery. (R. 46-48) Eight or nine years before the hearing, Littsen successfully completed drug and alcohol abuse treatment. (R. 48-50)
Littsen's testimony is contradicted by her medical records, which indicate she was diagnosed with depression in August 1996, and continued to receive both counseling and prescriptions for antidepressant medications through the date of the hearing. ( See R. 328-29 (Prozac; diagnosed with depression; counseling); 327 (musculoskeletal pain possibly related to depression); 350-58 (evaluating psychologist diagnosed anxiety disorder and depression); 373, 407-08 (Dr. Ellis prescribed Amitriptyline, Serzone, Wellbutrin); 401 (depression)).
Her past work was as a cashier, fast food worker, and donut maker. (R. 38) After her back surgery, she attempted to return to work at Taco Bell, but left work after three days because of pain in her legs and lower back. (R. 40) She has not attempted to work since then. (R. 40-41)
2. Vocational expert's testimony
The ALJ posed the following hypothetical question to the VE:
If we take a hypothetical young woman, 34 to 38 years of age, with education and work experience like the claimant has, and if she were limited to lifting only 20 pounds occasionally and 10 pounds frequently, would have to have a job where she could alternate sitting and standing without sitting for more than an hour at a time, or standing for over about a half hour at a time. And that walking would be limited to three or four city blocks at one time, and if further, our hypothetical person could only occasionally climb, stoop, kneel, crawl, balance or crouch, and should be in a work environment that does not have noxious irritants from dust, fumes or smoke. And further, our hypothetical person should have some limitation in working closely with others, so she should only, let's say, have occasional contact with — or less than constant contact with supervisors and co-workers. If those were the limitations our hypothetical person had, could that person, in your opinion, be expected to perform her past relevant work on a competitive basis?
(R. 52) The VE responded that the hypothetical woman would not be able to perform any of her past work activity, but could perform a less than full range of light and sedentary unskilled work activities, (R. 53).
The VE gave the following examples of jobs Littsen could perform:
Some examples, Your Honor, would be an office helper, 239.567-010, listed at the light level, approximately 1,000 positions in Iowa, 110,000 positions nationally. A charge account clerk, 205.367-014, listed at a sedentary level, approximately 250 positions in Iowa, 35,000 positions nationally. A telephone surveyor, 205.367-054, listed at the sedentary to light levels, approximately 200 positions in Iowa, 45,000 positions nationally. A surveillance monitor, 379.367-020, listed at the sedentary level, approximately 300 positions in Iowa, 32,000 positions nationally.
(R. 53-54) The ALJ then asked the VE to assume, as an additional limitation, that the hypothetical woman could not use her nondominant hand consistently, and the VE responded this additional limitation would eliminate the office helper position but not the other jobs. (R. 54) The ALJ then asked the VE to assume, as a further limitation, that the hypothetical woman could not complete a seven-and-one-half-hour or eight-hour work day or a thirty-five-hour or forty-hour work week, and the VE responded that these additional limitations would preclude competitive employment. ( Id.)
3. Littsen's medical history
A detailed chronology of Littsen's medical history, taken from the records she provided in support of her applications for benefits, is attached as an Appendix to this opinion. Her relevant medical history is summarized here.
On January 14, 1993, Littsen saw J.D. Wiedemeier, M.D., complaining of pain in her low back and legs, and in her arm between her shoulder and elbow. (R. 180) He diagnosed a mild lumbar scoliosis to the right, with an otherwise normal spine, and prescribed Naprosyn. ( Id.) She returned on January 19, 1993, complaining of continued pain, so Dr. Wiedemeier referred her to Kevin Liudahl, an orthopedist. ( Id.)
On January 28, 1993, Dr. Liudahl saw Littsen and diagnosed a suspected bulging lumbar disk. (R. 181, 179) He advised Littsen not to go to work, and ordered an MRI and prescribed an epidural flood. (R. 179) The MRI examination was performed on February 1, 1993, and showed a "tiny right posterolateral disc protrusion at L4-5" and a "[s]mall central type disc protrusion at L5-S1." (R. 180) On February 11, 1993, Littsen returned to Dr. Liudahl and reported "100% relief of her discomfort." (R. 179) Dr. Liudahl told her she could return to full duty at work. ( Id.) On July 12, 1993, Littsen reported to Dr. Liudahl that she was suffering pain in her back and legs and in her neck. ( Id.) He ordered another epidural flood. ( Id.)
On July 28, 1993, Littsen saw Earl F. Elowsky, M.D. (R. 187-88) Dr. Elowsky's impression was back pain possibly due to kidney disease, or possibly "referred pain from her ruptured disk." (R. 188) Littsen saw G. Barrie Purves, M.D., a neurosurgeon, on August 5, 1993. (R. 251-52) After examining Littsen, Dr. Purves had no significant findings, and released her to work with a 25-pound lifting restriction. ( Id.) On September 30, 1993, Littsen returned to Dr. Purves complaining of "quite severe pain throughout her entire spine involving her neck, thoracic and lumbar region, and again with pain into her legs" as a result of an injury on the job (R. 250) Dr. Purves ordered a myelogram, which showed "moderate-sized central disc at L5/S1 with considerable left-sided protrusion with displacement of the nerve roots." (R. 223) Dr. Purves discussed with Littsen her surgical options and urged her to think it over. ( Id.)
Littsen next saw Dr. Purves on September 18, 1994, and reported that a week earlier she was "lifting cases of pop" at work when "she had the acute onset of low back discomfort." (R. 222) The pain gradually worsened, and extended down her right leg, until she was unable to continue working. ( Id.) Dr. Purves diagnosed "an acute low back strain with some root irritation, perhaps an acute disc protrusion." He prescribed Naprosyn and three days of bed rest. ( Id.) Dr. Purves saw Littsen again on September 22, 1994, and her symptoms had "largely resolved." (R. 248-49)
On September 25, 1994, Littsen saw B.F. Reeder, M.D., at Marian Health Center, complaining that she had twisted in bed and felt a sudden pop, and felt that she could not move her legs. (R. 221) After a shot of Demerol, she had marked improvement. ( Id.) Littsen saw Dr. Purves on October 6, 1994, complaining of severe pain in her back and leg. (R. 244) Upon examination, Dr. Purves found little to support her complaints, but put her off work for a week. ( Id.) Dr. Purves saw Littsen again on October 20, and November 3 and 22, 1994, and Littsen showed continued improvement (R. 243, 242, 246, 241) until December 15, 1994, when a repeat scan demonstrated "a significant disk protrusion, actually a sequestrated fragment on the left side." (R. 240) Dr. Purves recommended she consider a "surgical diskectomy." ( Id.) On January 25, 1995, Littsen saw Douglas J. Long, M.D., at the University of Nebraska Medical Center, for a neurosurgical consultation. (R. 216-17) Dr. Long recommended surgical decompression "if her pain in her back and leg continues to be lifestyle limiting." (R. 217)
Dr. Purves performed a left L5-S1 microdiskectomy on March 29, 1995. (R. 219-20) Littsen did well following surgery, and at the time she left the hospital on March 30, 1994, she had no leg pain, but some back discomfort. (R. 218) Littsen saw Dr. Purves on April 20, 1995, complaining of "some rather bizarre symptoms, primarily of headache, which occurs all of the time not just when she is lying down." (R. 237) Upon examination, Dr. Purves concluded Littsen was "actually doing quite well," and she was having "psychogenic symptoms." ( Id.) On May 2, 1995, he noted continued progress in Littsen's recovery. (R. 236) He concluded she would be able to return to work in about four weeks on a part-time basis with a 20-pound lifting restriction, and she would be able to return to her normal job in two months. ( Id.)
On May 30, 1995, Littsen saw Dr. Purves complaining of "pain in her right leg which goes right down to her ankle." (R. 235) Dr. Purves noted Littsen's previous symptoms were mostly on her left side, and upon examination, determined she was "actually coming along pretty well." ( Id.) Littsen saw Dr. Purves again on June 20, 1995, complaining of paresthesias in her legs that made it difficult for her to sleep. (R. 234) A physical examination was normal except for a "nonanatomical sensory loss involving the entire right leg to a straight line across the umbilicus." ( Id.) Dr. Purves scheduled an MRI, which was conducted on June 30, 1995, and was essentially normal. (R. 253)
Littsen saw Dr. Purves again on July 6, 1995, and Dr. Purves determined that her progress after the surgery was good. (R. 232-33) Although Littsen continued to complain of leg and back pain, Dr. Purves concluded her symptoms were related to stress from marital problems. (R. 232) On August 10, 1995, he concluded Littsen was "doing quite well," and released her to work full time, with a 50-pound restriction for occasional lifting. (R. 231) On September 25, 1995, Littsen reported leg pain to A. Michael Guimaraes, M.D., at Siouxland Family Practice Center, and obtained prescriptions for Darvocet and Flexeril. (R. 225-26) On October 31, 1995, she returned to Dr. Purves, complaining that her back and leg pain were "aggravated by being on her feet for any length of time." (R. 230) Dr. Purves's notes indicate, "On examination, there really is very little to find. She has a normal symmetric spine now." ( Id.) Dr. Purves recommended a work hardening program and then a functional capacity evaluation. ( Id.)
On November 6, 1995, Littsen saw Donna L. Rodriguez, P.T., at St. Luke's Rehabilitation Services for a work hardening initial evaluation. (R. 255-61) The physical therapist assessed Littsen's rehabilitation potential as "fair," noting she was "unable to perform functional work activities for an 8 hour day due to low back pain." ( Id.)
Leonel H. Herrera, M.D., monitored Littsen's physical therapy for several weeks, from December 5, 1995, to January 9, 1996. (R. 201, 302-10) His notes indicate Littsen exhibited "[p]oor compliance with attempts to relieve pain," and she "wishes to control these her own way." (R. 302) He stated Littsen was unwilling to follow his advice, particularly to use ice to reduce inflammation and receive SI joint injections. He ultimately concluded Littsen was "unable to complete the rehabilitation," and advised she stop rehabilitation and "proceed onto a Functional Capacity Evaluation (FCE)." (R. 301, 302-10)
During the same time period, physical therapist Marcus M. Witter also reviewed Littsen's records, as well as performing the FCE. He noted Littsen's records showed a wide fluctuation in her willingness and ability to participate fully in therapy, sometimes being praised for her work, other times appearing uninterested. ( See R. 262-67) The FCE on January 18, 1996, indicated Littsen:
is able to work at the sedentary-light Physical Demand Level for an 8 hour day. . . . Ms. Littsen exhibited Symptom Exaggeration and Inappropriate Illness Behavior and she failed 51% of her Validity Criteria giving her an Invalid Validity Profile, indicating submaximal effort. Therefore, the results of this evaluation are considered Invalid and other data must be considered when making decisions regarding medical management and vocational planning.
(R. 271; see R. 270-300) On January 23, 1996, Dr. Herrera recommended Littsen return to work with a 35-pound lifting restriction, "and essentially a light-medium physical demand classification of worker." (R. 268-69) He found she could lift 35 pounds on an occasional basis, 15 pounds on a frequent basis, and 7 pounds on a constant basis. He opined she could tolerate frequent standing and walking, and occasional sitting, bending, reaching, climbing, squatting, kneeling, and crawling. She could work "low speed assembly as well as pushing/pulling, fine work and simple grasping." ( Id.) He gave Littsen a 10% rating of impairment of the whole person due to her back surgery and residual pain and rigidity, and "[n]o additional impairment . . . for loss of range of motion due to this patient's invalid study." ( Id.)
An independent medical evaluation performed May 7, 1996, by John M. Kalec, M.D., a physician board-certified in physical medicine and rehabilitation, concurred in the 10% impairment rating. (R. 311-13) Dr. Kalec found Littsen could work "at a sedentary to light physical demand capacity with no lifting over 20 pounds," occasional lifting up to 19 pounds, and frequent lifting up to 10 pounds, with "no repetitive bending, lifting or twisting." (R. 313) Dr. Kalec felt Littsen had "made maximal medical improvement." ( Id.)
Littsen saw Kelly Moser, M.D., on June 27, 1996, complaining of low back pain and tingling in her leg. (R. 328-29) The doctor did not find any specific neurological problems, but noted she might have a slightly irritated nerve due to her low back pain. The doctor prescribed Naprosyn and back exercises, and advised her to consider physical therapy. ( Id.)
Rehabilitation counselor Patricia Conway performed an Employability Assessment of Littsen on July 10, 1996. ( See R. 316-24) She found Littsen was "capable of occasionally bending, stooping, twisting, kneeling, and crouching, which are among the work tasks of a Cashier." (R. 323) She noted Littsen could walk and stand frequently, but only sit occasionally, and noted Littsen might "need to have a stool available so she could sit occasionally to relieve her back discomfort." ( Id.) Conway opined Littsen could work in a number of jobs such as cashier, taking in returned merchandise, or in a variety of customer service applications. ( Id.) She encouraged Littsen to seek job placement assistance from Iowa Voc-Rehab Services. Conway noted Littsen's "employment potential has been altered since her injury of 1994 but she still qualifies for the same types of jobs post-injury that she qualified for pre-injury." (R. 324) She disagreed with Littsen's belief that given her restrictions, she would be unable to perform a cashiering position. ( Id.) Conway reviewed an Earning Capacity Assessment Report and concluded Littsen's loss of earning capacity was 10-15%. (R. 314-15)
Littsen was diagnosed with depression on August 23, 1996, by Kathryn Boge, M.D. Dr. Boge started Littsen on Prozac, and noted she had a "[p]oor social situation." (R. 328-29) On September 13, 1996, Littsen told Dr. Bode she was unable to tolerate Prozac's side effects. She reported her depression had improved, and agreed to try counseling without medication. (R. 328)
On October 2, 1996, Littsen saw Anthony Ellis, D.O., for pain in her left arm. Dr. Ellis suspected Littsen's pain was "possibly related to her depression and stress." (R. 327) The record indicates Littsen next sought medical treatment on February 24, 1997, the day after she was in an automobile accident. ( See R. 380) Littsen saw Curtis Horstman, D.O., and reported she had been a front seat passenger in a car that was hit from the rear and spun around. She had hit her head against the other front passenger. Dr. Horstman advised Littsen to use stretching exercises, warm showers and baths, and heating pads. ( Id.)
D.L. Lassen, M.D. performed a disability evaluation of Littsen on March 5, 1997. ( See R. 334-36) His examination showed normal reflexes, and some muscle weakness that was worse on the left side. A Physical Residual Functional Capacity Assessment performed by B.T. Woodburn, M.D., on March 17, 1997, found Littsen could occasionally lift and/or carry 20 pounds; frequently lift and carry 10 pounds; stand, walk, or sit for about six hours in an eight-hour workday; and push, pull, climb, balance, stoop, kneel, crouch, and crawl without limitation. She had no manipulative, visual, communicative, or environmental limitations. (R. 337-44) The report was reviewed by Dennis A. Weis, M.D., who concurred with Dr. Woodburn's conclusions. (R. 345)
Otherwise, Dr. Lassen's report simply recites Littsen's subjective complaints.
On August 11, 1997, Littsen underwent an SSI Disability Evaluation by Dr. Philip J. Muller. ( See R. 346-49) He diagnosed Littsen with post-traumatic stress disorder, chronic back pain, and moderate to severe psychosocial and environmental problems. Dr. Muller gave Littsen a current GAF of 55, indicating "at least moderate symptoms or moderate difficulty in [psychological], occupational, or social functioning." Diagnostic and Statistical Manual of Mental Disorders III, at 12 (3d ed. 1987).
Carole Davis Kazmierski, Ph.D. performed a Psychiatric Review Technique of Littsen on September 26, 1997. ( See R. 350-58) She concluded Littsen suffered from anxiety disorder and depression. Although she noted Littsen had some moderate difficulties in maintaining social functioning, she found no evidence of "deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms." (R. 357)
Dr. Kazmierski also performed a Residual Functional Capacity Assessment. ( See R. 359-62) She found Littsen to be moderately limited in her (1) ability to work in coordination with or proximity to others without being distracted by them; (2) ability to complete a normal workday and workweek without interruptions from psychologically-based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods; (3) ability to interact appropriately with the general public; (4) ability to accept instructions and respond appropriately to criticism from supervisors; and (5) ability to respond appropriately to changes in the work setting. ( Id.) She noted Littsen had been sexually abused as a child, and currently attended an abuse survivor group. (R. 361) Dr. Kazmierski opined Littsen may have "`some difficulty' interacting with others and may be a little bit limited in work place. No other significant areas of impairment are noted." ( Id.)
Littsen began seeing Dr. Ellis regularly in November 1997, for complaints of fatigue, insomnia, muscle pain, depression, and pain variously in her arms and legs. ( See R. 373, 375, 401-03, 405, 406, 408, 423) Dr. Ellis saw Littsen on 11/26/97 (R. 375), 1/21/98 ( id.), 2/23/98 (R. 373), 6/5/98 (R. 408), 6/12/98 ( id.), 8/11/98 (R. 406), 9/1/98 (R. 405), 9/8/98 (R. 423), 9/11/98 (R. 405), 1/26/99 (R. 403), 3/3/99 (R. 402), and 3/17/99 (R. 401). Dr. Ellis treated her symptomatically for pain, and tried various antidepressants including Amitriptyline, Serzone and Wellbutrin. ( See infra, note 1) On September 1, 1998, he placed her on a TENS unit. (R. 405; s ee R. 403) On September 8, 1998, Dr. Ellis noted Littsen's "activities for employment would be significantly limited due to her chronic neck pain." (R. 423) Three days later, Dr. Ellis noted Littsen was doing better. (R. 405)
On January 26, 1999, Dr. Ellis saw Littsen again for complaints of fatigue. Littsen reported she was tired all the time, napping every day. Her "significant other" said Littsen was "up working on the Internet quite a bit at night and he thinks that that could also be a factor." (R. 403) In March 1999, the record indicates Dr. Ellis had begun to suspect Littsen may be suffering from fibromyalgia ( see 401, 402), in addition to her ongoing depression.
For purposes of considering Littsen's applications for benefits, the ALJ had the benefit of medical records through March 1998 ( see R. 4, 430). The Appeals Council considered the additional records through September 1999 ( see R. 6-8).
4. The ALJ's conclusions
The ALJ found Littsen is no longer able to meet the physical or mental demands of her past work, but she has retained the physical and mental residual functional capacity to perform all the essential duties of other types of work currently existing in significant numbers in the local and national economies. (R. 430) Before summarizing the medical evidence and the hearing testimony supporting his findings, the ALJ noted "an individual's subjective complaints shall not alone be conclusive evidence of disability," and "[t]here must be medical signs and findings, established by medically acceptable diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under the Social Security Act . . . would lead to a conclusion that the individual is under a disability." (R. 434; citations omitted)
The ALJ summarized the history of the treatment for Littsen's back condition by referring to the Employability Assessment report prepared by Conway on July 16, 1996, which "provides a thorough summary of the claimant's treatment in regards to her back condition." (R. 434) Based on this summary, Conway was of the opinion that Littsen's "employability potential" was somewhat reduced on a permanent basis, but she was still capable of holding a job. (R. 437-38) Two medical consultants for the State disability determination service gave the following opinions: Littsen was limited to lifting up to twenty pounds occasionally, with more frequent lifting limited to ten pounds; she was able to sit for a total of six hours; she was unlimited in her ability to push or pull objects; she was limited to only occasional climbing, balancing, stooping, kneeling, crouching, and crawling; and she faced no manipulative, visual, communicative, or environmental limitations of routine work activity. (R. 438)
The ALJ found "the medial record supports a conclusion that [Littsen] retains a significant measure of physical capacity at least up to a light level of exertion." (R. 439) He then extended the inquiry into Littsen's claim that "she has been bothered by mental depression." ( Id.) The ALJ reviewed the medical evidence in the record relating to Littsen's psychological complaints, noting in particular Dr. Kazmierski's conclusion that Littsen
would face no significant vocational limitations from a psychological standpoint except for a moderate limitation in the ability to work in coordination with or in proximity to others without being distracted by them, and also a moderately limited ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. [Littsen] would also face moderate limitations in the ability to interact appropriately with the general public and the ability to accept instructions and respond appropriately to criticism from supervisors . . . [and] would be moderately limited in the ability to respond appropriately to changes in the work setting.
(R. 440-41)
The ALJ concluded Littsen's "testimony in support of her allegations [is] not fully credible." He noted further:
By applying for Social Security Administration disability benefits, [Littsen] necessarily alleges impairments which totally incapacitate her for any type of employment. The undersigned does not agree that [Littsen] has been so incapacitated for any consecutive period of time meeting the durational requirements of the Act. The preponderance of the medical evidence suggests a significant measure of physical capacity, at least up to a light level of physical exertion, and it does not appear that [Littsen's] psychological condition, even untreated, poses a significant barrier to full-time employment.
(R. 441-42)
Among other things, the ALJ noted Littsen had "not been persistent in seeking active treatment for any of her conditions." (R. 442) He also pointed to Littsen's failure to follow through with the work hardening program, her frequent failure to show up for physical therapy appointments, her noncompliance with physicians' recommendations, and a failure to exhaust "all avenues of conservative treatment for her chronic back pain," such as failure to try a back brace. ( Id.) He emphasized Littsen's tendency to magnify her symptoms, and her doctors' inability, on occasion, to find objective evidence to support her subjective complaints. (R. 443) The ALJ also noted that although Littsen "testified to a rather sedentary life style," it appeared she "could be much more active if she so desired." (R. 442) Although she complained of severe limitations, she nevertheless continued to do her own housework, laundry, cooking, child care, grocery shopping, driving, and playing bingo. (R. 442-43) The ALJ explained, "Although these activities do not necessarily prove [Littsen] is able to engage in full-time competitive employment, they do suggest that she retains a significant measure of physical capacity, and that she is able to maintain adequate attention and concentration despite the symptoms of her established impairments." (R. 443)
In finding Littsen's subjective complaints lacked credibility, the ALJ noted:
The undersigned recognizes that if all of [Littsen's] allegations were fully credible, her ability to perform routine work activity would be significantly limited. . . . However, it must be kept in mind that [Littsen's] allegations are not self-proving. The critical inquiry is whether the allegations are credible. While the undersigned acknowledges that [Littsen] experiences some chronic pain in the lower back, and that that pain would likely be exacerbated by very heavy physical activity, and that she has experienced at least situational depression in the past, there is little substantial evidence in the record to support her contention that her pain and psychological discomfort would be so se[vere] as to completely preclude her from performing routine work activity at lower physical demand levels. The undersigned finds [Littsen's] subjective complaint's [sic] alone, without a sufficient amount of required documentation, cannot establish disability . . . .
(R. 444-45) The ALJ credited the conclusions of the VE and the FCE in finding Littsen "is capable of performing a wide range of light and sedentary work activity on a competitive basis," although she "faces other vocational limitations." (R. 449) He found she is not able to perform any past relevant work, and "has not developed skills from past work which could readily be transferred to occupations that remain within the range of her residual functional capacity." ( Id.) Nevertheless, he found a significant number of jobs exist in the local and national economies which Littsen can still perform, such as "office helper, charge account clerk, telephone surveyor, and surveillance system monitor." ( Id.)
The ALJ concluded Littsen has not engaged in substantial gainful activity since March 15, 1995, the date of her alleged disability. (R. 448) He found she has the following impairments that more than minimally restrict her capacity for routine work activity: "Status-post L5-S1 herniated nucleus pulposus with surgical decompression, bilateral sacroiliac sprains, chronic reconditioning, depression, and history of substance abuse." ( Id.) The ALJ concluded Littsen has a "severe" impairment as defined by the Social Security Act, but she does not have an impairment or combination of impairments listed in, or medically equal to, one listed in the Regulations. ( Id.)
The ALJ found the record as a whole did not support Littsen's allegations "as they relate to the restriction of her functional capacity to the extent that she alleges total incapacity resulting from her medically determinable impairments." ( Id.) The ALJ further found Littsen did not provide "a clinical record sufficient to document discernible physical abnormalities in significant numbers and detail necessary for the [ALJ] to reasonably conclude that her impairments preclude her, or have precluded her, from performing any type of work on a competitive basis for a period of time exceeding the durational requirements established by the Act." ( Id.) Accordingly, the ALJ found Littsen was not under a disability as defined by the Social Security Act at any time through the date of the decision. ( Id.)
III. DISABILITY DETERMINATIONS, THE BURDEN OF PROOF, AND THE SUBSTANTIAL EVIDENCE STANDARD
Section 423(d) of the Social Security Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505. A claimant has a disability when the claimant is "not only unable to do his previous work but cannot, considering . . . his age, education and work experience, engage in any other kind of substantial gainful work which exists in [significant numbers in] the national economy . . . either in the region in which such individual lives or in several regions of the country." 42 U.S.C. § 432(d)(2)(A).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step process outlined in the regulations. 20 C.F.R. § 404.1520 416.920; see Kelley, 133 F.3d at 587-88 (citing Ingram v. Chater, 107 F.3d 598, 600 (8th Cir. 1997)). First, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity. Second, he looks to see whether the claimant labors under a severe impairment; i.e., "one that significantly limits the claimant's physical or mental ability to perform basic work activities." Kelley, 133 F.3d at 587-88. Third, if the claimant does have such an impairment, then the Commissioner must decide whether this impairment meets or equals one of the presumptively disabling impairments listed in the regulations. If the impairment does qualify as a presumptively disabling one, then the claimant is considered disabled, regardless of age, education, or work experience. Fourth, the Commissioner must examine whether the claimant retains the residual functional capacity to perform past relevant work.
Finally, if the claimant demonstrates the inability to perform past relevant work, then the burden shifts to the Commissioner to prove there are other jobs in the national economy that the claimant can perform, given the claimant's impairments and vocational factors such as age, education and work experience. Id.; Hunt v. Heckler, 748 F.2d 478, 479-80 (8th Cir. 1984) ("[O]nce the claimant has shown a disability that prevents him from returning to his previous line of work, the burden shifts to the ALJ to show that there is other work in the national economy that he could perform.") (citing Baugus v. Secretary of Health Human Serv., 717 F.2d 443, 445-46 (8th Cir. 1983); Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir. 1983); O'Leary v. Schweiker, 710 F.2d 1334, 1337 (8th Cir. 1983)).
Step five requires that the Commissioner bear the burden on two particular matters:
In our circuit it is well settled law that once a claimant demonstrates that he or he is unable to do past relevant work, the burden of proof shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) ( en banc); O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1983).Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (emphasis added) accord Weiler, 179 F.3d at 1110 (analyzing the fifth-step determination in terms of (1) whether there was sufficient medical evidence to support the ALJ's residual functional capacity determination and (2) whether there was sufficient evidence to support the ALJ's conclusion that there were a significant number of jobs in the economy that the claimant could perform with that residual functional capacity); Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998) (describing "the Secretary's two-fold burden" at step five to be, first, to prove the claimant has the residual functional capacity to do other kinds of work, and second, to demonstrate that jobs are available in the national economy that are realistically suited to the claimant's qualifications and capabilities).
Governing precedent in the Eighth Circuit requires this court to affirm the ALJ's findings if they are supported by substantial evidence in the record as a whole. Weiler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) (citing Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999)); Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir. 1998) (citing Matthews v. Bowen, 879 F.2d 422, 423-24 (8th Cir. 1989)); 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, substantial evidence means something "less than a preponderance" of the evidence, Kelley, 133 F.3d at 587, but "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir. 1990). Substantial evidence is "relevant evidence which a reasonable mind would accept as adequate to support the [ALJ's] conclusion." Weiler, 179 F.3d at 1109 (again citing Pierce, 173 F.3d at 706); Perales, 402 U.S. at 401, 91 S.Ct. at 1427; accord Hutton v. Apfel, 175 F.3d 651, 654 (8th Cir. 1999); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Ellison, 91 F.2d at 818.
Moreover, substantial evidence "on the record as a whole" requires consideration of the record in its entirety, taking into account "`whatever in the record fairly detracts from'" the weight of the ALJ's decision. Willcuts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)); accord Hutton, 175 F.3d at 654 (citing Woolf, 3 F.3d at 1213). Thus, the review must be "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision"; it must "also take into account whatever in the record fairly detracts from the decision." Kelley, 133 F.3d at 587 (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Secretary of Health Human Serv., 879 F.2d 441, 444 (8th Cir. 1989) (citing Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987)). The court, however, does "not reweigh the evidence or review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the agency's findings, [the court] must affirm the [Commissioner's] decision." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989)); see Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir. 1997) (citing Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996)). This is true even in cases where the court "might have weighed the evidence differently," Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)), because the court may not reverse "the Commissioner's decision merely because of the existence of substantial evidence supporting a different outcome." Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1997).
On the issue of an ALJ's determination that a claimant's subjective complaints lack credibility, the Sixth and Seventh Circuits have held an ALJ's credibility determinations are entitled to considerable weight. See, e.g., Young v. Secretary of H.H.S., 957 F.2d 386, 392 (7th Cir. 1992) (citing Cheshier v. Bowen, 831 F.2d 687, 690 (7th Cir. 1987)); Gooch v. Secretary of H.H.S., 833 F.2d 589, 592 (6th Cir. 1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1050, 98 L.Ed.2d 1012 (1988); Hardaway v. Secretary of H.H.S., 823 F.2d 922, 928 (6th Cir. 1987). Nonetheless, in the Eighth Circuit, an ALJ may not discredit a claimant's subjective allegations of pain, discomfort or other disabling limitations simply because there is a lack of objective evidence; instead, the ALJ may only discredit subjective complaints if they are inconsistent with the record as a whole. See Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994); see also Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). Under Polaski:
The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
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;
5) functional restrictions.
Polaski, 739 F.2d at 1322.
IV. ANALYSIS A. Littsen's Subjective Complaints
Littsen argues the ALJ improperly evaluated her subjective pain complaints. Littsen claims the ALJ failed to make specific credibility findings and only spoke in general terms in finding the medical evidence did not support her subjective complaints. (Doc. 9, pp. 3-4)
In his decision, the ALJ recognized his burden to give full consideration to all the evidence presented, citing Polaski. (R. 441) The court finds that although he did not set out each of the Polaski factors in individual paragraphs, the ALJ's opinion discusses the evidence in light of those requirements. As noted above, the ALJ discussed at length his reasons for discrediting Littsen's testimony. The court finds the ALJ's credibility determination is supported by substantial evidence in the record as a whole.
B. Hypothetical Question
Littsen argues the ALJ relied on an incomplete hypothetical question. The Eighth Circuit has held an ALJ's hypothetical question must fully describe the claimant's abilities and impairments as evidenced in the record. See Chamberlain v. Shalala, 47 F.3d 1489, 1495 (8th Cir. 1995) (citing Shelltrack v. Sullivan, 938 F.2d 894, 898 (8th Cir. 1991)). A hypothetical question is "sufficient if it sets forth the impairments which are accepted as true by the ALJ." Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997); House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994). Only the impairments substantially supported by the record as a whole must be included in the ALJ's hypothetical. Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996) (citing Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993)). If a hypothetical question does not encompass all relevant impairments, the vocational expert's testimony does not constitute substantial evidence to support the ALJ's finding of no disability. Cruze, 85 F.3d at 1323 (citing Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994)). The ALJ may produce evidence of suitable jobs by eliciting testimony from a VE "concerning availability of jobs which a person with the claimant's particular residual functional capacity can perform." Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998). A "proper hypothetical question presents to the vocational expert a set of limitations that mirror those of the claimant." Hutton v. Apfel, 175 F.3d 651, 656 (9th Cir. 1999).
In Wiekamp v. Apfel, 116 F. Supp.2d 1056 (N.D.Iowa 2000), Chief Judge Mark Bennett explained further the requirements for a proper hypothetical question posed to a VE:
"Testimony from a vocational expert is substantial evidence only when the testimony is based on a correctly phrased hypothetical question that captures the concrete consequences of a claimant's deficiencies." Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir. 1997). Although "questions posed to vocational experts should precisely set out the claimant's particular physical and mental impairments, . . . a proper hypothetical question is sufficient if it sets forth the impairments which are accepted as true by the ALJ." House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994) (internal citations, quotation marks, and alterations omitted).
Roberts v. Apfel, 222 F.3d 466, 471 (8th Cir. 2000). "The hypothetical need not use specific diagnostic terms . . . where other descriptive terms adequately describe the claimant's impairments." Warburton [ v. Apfel, 188 F.3d [1047,] 1050 [(8th Cir. 1999)]. An ALJ is not required to include in a hypothetical question to a vocational expert any impairments that are not supported by the record. Prosch, 201 F.3d at 1015. However, where an ALJ improperly rejects the opinion of a treating physician or subjective complaints of pain by the claimant, the vocational expert's testimony that jobs exist for the claimant does not constitute substantial evidence on the record as a whole where the vocational expert's testimony does not reflect the improperly rejected evidence. See Singh, 222 F.3d at 453 ("In view of our findings that the ALJ improperly rejected both the opinion of Singh's treating physician and Singh's subjective complaints of pain, we find that the hypothetical question posed to the vocational expert did not adequately reflect Singh's impairments. Accordingly, the testimony of the vocational expert that jobs exist for Singh cannot constitute substantial evidence on the record as a whole.").Wiekamp, 116 F. Supp.2d at 1073-74.
In the present case, the hypothetical initially posed to the VE assumed all the limitations the ALJ ultimately found Littsen to have. Littsen argues the final question posed to the ALJ should control, in which the VE testified that if Littsen were unable to complete a seven-and-one-half-hour or eight-hour work day, or a thirty-five-hour or forty-hour work week, then she would be precluded from competitive employment. However, the ALJ correctly noted:
An Administrative Law Judge is not bound to accept as true all restrictions presented in hypothetical questions for the vocational expert's response. A vocational expert's testimony is only valuable to the extent that it accurately presents the claimant's physical and mental impairment. Hypothetical questions are sufficient if they set forth impairments which the undersigned finds true. The undersigned does not find true any hypothetical conditions not consistent with the residual functional capacity found above . . . [and therefore] gives no weight to the vocational expert's responses to the hypothetical questions incorporating other conditions.
(R. 446-47)
As discussed above, the ALJ specifically found Littsen is able to engage in activities well beyond the sedentary lifestyle she has chosen. The court finds the hypothetical questions presented to the VE accurately presented Littsen's limitations which the ALJ found to be supported by the evidence.
C. Littsen's Ability to Perform Competitive Work
Littsen argues the ALJ's conclusion that she can perform competitive work failed to consider Littsen's subjective complaint that she needs to alternate positions during the day between sitting, standing, and lying down. ( See Doc. No. 9, pp. 6-7) Littsen's arguments rely on her subjective pain complaints, which the ALJ concluded lacked sufficient credibility. The court has found, above, that the ALJ's credibility determination is supported by substantial evidence. Thus, this argument also must fail.
D. Reliance on Treating Physician's Opinion
Littsen claims the ALJ substituted his opinion for the opinions of her treating physician. ( See Doc. No. 9, pp. 7-8) Although not entirely clear from her brief, the court concludes from reviewing the medical records that Littsen refers to the opinion of Dr. Ellis dated September 8, 1998, that Littsen's "activities for employment would be significantly limited due to her chronic neck pain." (R. 423)
In Prosch v. Apfel, 201 F.3d 1010 (8th Cir. 2000), the Eighth Circuit Court of Appeals discussed the weight to be given to the opinions of treating physicians:
The opinion of a treating physician is accorded special deference under the social security regulations. The regulations provide that a treating physician's opinion regarding an applicant's impairment will be granted "controlling weight," provided the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2). Consistent with the regulations, we have stated that a treating physician's opinion is "normally entitled to great weight," Rankin v. Apfel, 195 F.3d 427, 430 (8th Cir. 1999), but we have also cautioned that such an opinion "do[es] not automatically control, since the record must be evaluated as a whole." Bentley v. Shalala, 52 F.3d 784, 785-86 (8th Cir. 1995). Accordingly, we have upheld an ALJ's decision to discount or even disregard the opinion of a treating physician where other medical assessments "are supported by better or more thorough medical evidence," Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997), or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions, see Cruze v. Chater, 85 F.3d 1320, 1324-25 (8th Cir. 1996).
Whether the ALJ grants a treating physician's opinion substantial or little weight, the regulations provide that the ALJ must "always give good reasons" for the particular weight given to a treating physician's evaluation. 20 C.F.R. § 404.1527(d)(2); see also SSR 96-2p.Prosch, 201 F.3d at 1012-13
Where the physician's conclusion is based heavily on the claimant's subjective complaints and is at odds with the weight of the objective evidence, including the claimant's daily activities and physical therapy records, the physician's opinion properly may not be afforded the same degree of deference. Rankin v. Apfel, 195 F.3d 427, 429 (8th Cir. 1999) (citing Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999)).
As Judge Mark W. Bennett of this court recently observed in considering the weight to be given treating physicians' opinions:
The importance of the opinions of treating physicians in the determination of disability is well-settled:
A treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight. See Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991). A treating physician's opinion regarding an applicant's impairment will be granted controlling weight, provided the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. See Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). By contrast, "[t]he opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence." Id. Likewise, the testimony of a vocational expert who responds to a hypothetical based on such evidence is not substantial evidence upon which to base a denial of benefits. See Nevland v. Apfel, 204 F.3d [853,] 858 [(8th Cir. 2000)].
* * *
[When t]here is no evidence in the record to support the ALJ's residual functional capacity finding other than the non-treating physicians' assessments . . . [t]hese assessments alone cannot be considered substantial evidence in the face of the conflicting assessment of a treating physician. See Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991).
* * *
The Commissioner is encouraged to give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist. See Metz v. Shalala, 49 F.3d 374, 377 (8th Cir. 1995). In any event, whether the ALJ grants a treating physician's opinion substantial or little weight, the regulations also provide that the ALJ must "always give good reasons" for the particular weight given to a treating physician's evaluation. 20 C.F.R. § 404.1527(d)(2).Singh v. Apfel, 222 F.3d [448,] 452 [(8th Cir 2000)] (emphasis added); (other citation omitted).
In Singh, where the court found that "[t]he record here is replete with evidence that substantiates the opinion of Singh's treating physician," the only contrary evidence was the opinions of non-treating physicians, and the treating physician was a specialist, the court held that the ALJ had improperly disregarded the conclusions of the claimant's treating physician. Singh, 222 F.3d at 452. Similarly, in Cunningham v. Apfel, 222 F.3d 496 (8th Cir. 2000), the Eighth Circuit Court of Appeals concluded that, if the ALJ had properly credited the opinions of treating physicians, the evidence would have supported a conclusion that the claimant was presumptively disabled, either by diabetes, neuropathy, or mental illness, or that the claimant, at the very least, had combined impairments that mandated a finding that the claimant could not return to her former job. Cunningham, 222 F.3d at 502."Wiekamp, 116 F. Supp.2d at 1063-64.
While an ALJ may disregard a treating physician's opinions that are based on a claimant's subjective pain complaints, Wiekamp, 116 F. Supp.2d at 1064, the ALJ's conclusions in this case are troubling in light of later medical records which now appear in the record. Of particular note is Dr. Ellis's opinion that Littsen's ultimate diagnosis possibly should be fibromyalgia — an ailment that is difficult to diagnose, and which relies heavily for diagnostic purposes on the patient's subjective complaints.
"Fibromyalgia," also known as fibrositis, is "a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, . . . Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective." Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). It causes pain in the fibrous connective tissue components of muscles, tendons, ligaments, and other white connective tissues. Cline v. Sullivan, 939 F.2d 560, 563 (8th Cir. 1991).
It is clear the Appeals Council considered Littsen's additional medical records in denying review. ( See R. 6-8) Under these circumstances, as the Eighth Circuit has explained:
When the Appeals Council has considered new and material evidence and declined review, we must decide whether the ALJ's decision is supported by substantial evidence in the whole record, including the new evidence.Kitts v. Apfel, 204 F.3d 785, 786 (8th Cir. 2000) (citing Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995)); accord Gartman v. Apfel, 220 F.3d 918, 922 (8th Cir. 2000) (citing Kitts, Mackey). While noting this is a rather "peculiar task for a reviewing court," our Circuit nevertheless has elected to include "such evidence in the substantial evidence equation." Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995).
Thus, this court must determine, considering the entirety of the record, whether the ALJ's determination that Littsen was not disabled is supported by substantial evidence. The court finds it is not. Nevertheless, this court may not enter an immediate finding of disability unless the record "overwhelmingly supports" such a finding. Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000). The evidence in the record, especially in light of the later medical records, is conflicting regarding the extent of Littsen's limitations, preventing the court from finding overwhelming evidence to support an immediate finding of disability. As a result, the proper course is to defer to the ALJ, and remand the case for further consideration of Littsen's claims for benefits in light of the entire record. On remand, the ALJ should be directed to consider the entire record, and to further develop the record as necessary to consider Littsen's condition and limitations fully and fairly.
V. CONCLUSION
The court may affirm, modify or reverse the Commissioner's decision with or without remand to the Commissioner for rehearing. 42 U.S.C. § 405(g). In this case, upon a full review of the administrative record and the parties' briefs, the court finds the record is inconclusive as to whether Littsen is disabled.
Accordingly, IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this Report and Recommendation, that this case be remanded pursuant to sentence four of section 405(g) for further consideration by the ALJ.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).