Opinion
CIVIL ACTION No. 02-2261-KHV
April 4, 2003.
MEMORANDUM AND ORDER
Mary Jane Ramirez appeals the final decision of the Commissioner of Social Security to deny her disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. This matter is before the Court on Plaintiff's Brief (Doc. #8) filed November 14, 2002, which the Court construes as a motion for judgment. For reasons set forth below, the Court sustains plaintiff's motion in part.
Procedural Background
On November 13, 1997, plaintiff filed her disability application with the Social Security Administration ("SSA"). She alleged a disability onset date of February 11, 1994. Plaintiff's benefit applications were denied initially and on reconsideration. On January 25, 1999, the administrative law judge ("ALJ") vacated the decision on reconsideration and remanded the claim to the state agency for further development of the record. On June 4, 1999, plaintiff's application was again denied on reconsideration. On June 24, 1999, plaintiff sought a hearing. On September 28, 1999, the ALJ held a hearing. On October 29, 1999, the ALJ concluded that plaintiff was not under a disability as defined in the Social Security Act and that she therefore was not entitled to disability benefits. On April 2, 2002, after considering new evidence, the Appeals Council denied plaintiff's request for review. The decision of the ALJ stands as the final decision of the Commissioner. See 42 U.S.C. § 405(g), § 1383(c)(3).
Factual Background
The following is a brief summary of the evidence presented to the ALJ.
Mary Jane Ramirez is 50 years old. She suffers from pain and limitations secondary to carpal tunnel syndrome, hepatitis, fibromyalgia and headaches. Transcript Of Proceedings Before The Social Security Administration ("Tr.") at 20, attached to defendant's Answer (Doc. #7) filed September 30, 2002. The ALJ concluded that these conditions are severe and cause more than minimal restrictions in plaintiff's ability to perform basic work activity. Id.
From 1984 through 1989, plaintiff worked as an accounts payable clerk. From May 1990 through February 1994, plaintiff worked for a physician group, performing data entry and clerical duties. Plaintiff testified that she stopped working in February of 1994, due to abdominal and muscle pain and migraine headaches. Tr. 37. Doctors diagnosed her with cerebral vasculitis, migraine headaches and fibromyalgia. Id.
Plaintiff has a history of significant migraine headaches which are documented as early as September of 1990. In August of 1992, plaintiff's headaches became more frequent and severe. On August 6, 1992, Donald K. Hopewell, M.D., a neurologist, examined plaintiff. Dr. Hopewell noted that plaintiff's headaches occurred about twice a month and lasted from 24 to 72 hours. Tr. 239. On December 7, 1992, Gary M. Thomsen, M.D., plaintiff's primary care physician, examined plaintiff. Dr. Thomsen noted that plaintiff had a very severe headache and burning sensation in her posterior neck. Tr. 177. During that visit, plaintiff told Dr. Thomsen that her headache had started four days earlier and she was worried about the possible loss of her job because of the headaches. Dr. Thomsen diagnosed plaintiff with right cephalgia and migraine headaches. Id. To treat the headache, Dr. Thomsen gave plaintiff an injection of Phenergan and Stadol. On 19 separate occasions from December 1992 through September 1994, plaintiff received injections for treatment of migraine headaches.
Dr. Thomsen was one of the physicians in the group which employed plaintiff. Tr. 38.
Beginning in approximately January of 1993, Nabih I. Abdou, M.D., of The Center for Rheumatic Disease The Center For Allergy And Immunology, treated plaintiff for headaches and pain. Because of plaintiff's extreme fatigue and pain, Dr. Abdou gave plaintiff permission to miss work from August 26 to September 7, 1993. Tr. 247. On September 16, 1993, Dr. Abdou noted that plaintiff reported increased migraine headaches and left shoulder pain and that lately she had experienced intermittent severe headaches and pain which required injections. Dr. Abdou discussed with plaintiff the possibility of reducing her work to 32 hours per week. Tr. 244.
On February 15, 1994, Dr. Hopewell again examined plaintiff for treatment of her headaches. Dr. Hopewell noted that he had treated plaintiff approximately two years earlier for a vascular migraine headache, and that her headaches were unchanged except they had increased in frequency and perhaps severity. Tr. 235-36.
In September of 1995, George Bures, M.D. became plaintiff's primary care physician. Plaintiff needed injections for headaches in both September and November of 1995. Tr. 338-39. On November 15, 1995, Dr. Bures referred plaintiff back to Dr. Hopewell, who examined her on December 5, 1995 and noted gradual improvement in her headaches. Tr. 227. Before, plaintiff had headaches every ten days. Near the time of her visit with Dr. Hopewell, she had severe headaches once or twice a month and they lasted for about two days. Id. Plaintiff reported nausea and vomiting with the headaches, but generally a combination of Stadol and Phenergan was effective to treat the headaches. Id.
In October 1996, a nurse noted that plaintiff had been notified that she needed to follow up with a neurologist and that the emergency room (ER) thought that she needed injections too often. Tr. 334. In November 1996, plaintiff went to the ER at Shawnee Mission Medical Center because she was vomiting blood and had unrelenting migraines. Tr. 430. Gordon Kelly, M.D., a neurologist, noted that plaintiff had a history of "sick" headaches associated with nausea and vomiting about once a month for the past year. Tr. 433. Dr. Kelly stated that plaintiff had a history of fairly typical migraines without aura and more intermittent tension headaches. Tr. 435. William A. Hartong, M.D. evaluated plaintiff for gastrointestinal bleeding and diagnosed moderate gastritis. Tr. 437. Dr. Hartong recommended Pepcid, continued neurologic work-up and further investigation of liver function. Tr. 437.
On December 25, 1996, plaintiff returned to the ER after four days of abdominal cramping, vomiting and migraine. Tr. 426. Mark A. Hall, M.D. treated plaintiff with IV rehydration and an injection of Stadol and Compazine. Tr. 426. Plaintiff received additional injections for migraines on January 7, May 22 and June 17, 1997. On June 25, 1997, during an ER visit, David S. Vodonick, M.D. suggested a headache protocol with IV Compazine and Benadryl, but plaintiff was not willing to participate in the protocol. Dr. Vodonick therefore gave her an injection of Stadol and Phenergan. Tr. 414. Plaintiff received additional injections for migraines on July 31, August 13, September 6, October 29 and December 30, 1997.
In September 1997, plaintiff was diagnosed with hepatitis C. On January 7, 1998, plaintiff underwent a liver biopsy which showed mild steatohepatitis with bridging fibrosis (liver inflammation characterized by fatty infiltration). After a series of tests, Dr. Hartong concluded that:
[o]verall it appears that she has steatohepatitis with cirrhosis and probably does not have any autoimmune component, however the data has been somewhat confusing. She has been evaluated by Dr. Freilich and Dr. Dean and my best conclusion at this time is that the patient has cryprogenic cirrhosis with thrombocytopenia which may or may not respond to immunotherapy. I think it would be appropriate to try the patient on steroids and possibly Imuran one more time. We have very little else to offer this patient short of continuing observation and eventual liver transplants.
Tr. 672 (letter from Dr. Hartong to Dr. Bures dated July 14, 1998). Steroids were not effective in treating plaintiff, Tr. 670, but Imuran apparently provided some relief, Tr. 666. By 1999, Dr. Hartong reported that plaintiff was doing well and that her platelet count remained stable.
Plaintiff's migraine headaches continued. Plaintiff received injections to treat migraine headaches on February 10, March 11, April 21, May 31, June 23, July 27, August 15, September 30 and October 21, 1998.
During her ER visit on August 15, Dr. Vodonick noted that plaintiff did not want the headache protocol, but wanted an injection of Demerol and Phenergan. Tr. 715.
On June 29, 1998, in response to an inquiry by plaintiff's attorney, Dr. Bures stated that plaintiff had "a very long, complex and perplexing medical history that probably precludes her from working full time mainly for the following reasons: profound fatigue and body aches and frequent problems with migraine headaches." Tr. 315. Dr. Bures diagnosed plaintiff with viral hepatitis, thrombocytopenia, probable vasculitis, migraine headaches, and fibromyalgia. Id. Dr. Bures opined that plaintiff's impairments were not likely to resolve within one year. Id.
On October 27, 1998, plaintiff went to the ER with abdominal pain. She received an injection of Demerol and Phenergan. Tr. 699. The ER doctor diagnosed plaintiff with acute abdominal pain secondary to gastroesophageal reflux disease. Tr. 699. On December 9, 1998, plaintiff went to the ER with a migraine headache and abdominal pain. She received an injection for her headache, and the ER doctor noted that her liver function tests were virtually unchanged from October of 1998. On December 28, 1998, plaintiff returned to the ER with abdominal pain, and received an injection of Demerol and Phenergan. Plaintiff also received injections for migraines on March 22, March 30 and May 14, 1999.
Plaintiff's insured status expired on June 30, 1999.
Plaintiff testified that she takes Flexeril for her headaches approximately twice per week. Tr. 42. If the Flexeril does not help, she takes Demerol or Darvocet. Plaintiff has to take Demerol or Darvocet approximately three times a month. Id. If the Demerol and Darvocet do not work, plaintiff goes to the ER for an injection. Id. As to her liver condition, plaintiff testified that she has fatigue and experiences abdominal pain and bloating. Id.
On March 23, 1999, at the request of Disability Determination Services (DDS), plaintiff consulted with Dr. Arnold E. Moskowitz, Ph.D. Dr. Moskowitz noted that occasionally plaintiff is inattentive and forgetful and that based on a series of informal psychological tests, plaintiff had "some considerable difficulty with attention span." Tr. 732. He also reported that plaintiff has very significant medical problems and also complains of pain and fatigue. Tr. 733. Dr. Moskowitz opined that plaintiff appeared to have a depressive disorder with complications, in that her mood disorder is associated with many of her general medical problems. Id.
The Commissioner retained Mary Titterington to testify as a vocational expert. The ALJ asked Titterington to consider a claimant of plaintiff's age, education and work experience. The ALJ hypothesized that claimant has the following limitations: she can lift and carry ten pounds frequently and 20 pounds on an occasional basis; she can stand and walk only two hours out of an eight-hour period but can sit with normal breaks and rest periods for six hours out of an eight-hour period; she is restricted from working in extreme cold or performing rapid, repetitive use of the hands; and she can only occasionally climb, balance, stoop, kneel, crouch and crawl. See Tr. 53. Titterington testified that based on the ALJ's description of plaintiff's capacity, she could perform her past relevant work as an accounts payable clerk. See Tr. 54. Titterington acknowledged that if plaintiff could not work four days a month because of migraine headaches, she would not be able to perform any work in the national economy. See Tr. 55-56. Titterington also acknowledged that if plaintiff had a severe attention span difficulty, she would not be able to perform any work in the national economy. See Tr. 56-57.
Titterington explained that employers will usually tolerate up to two missed work days a month, and that three days is usually the maximum. See Tr. 57.
In his order of October 29, 1999, the ALJ made the following findings:
1. The claimant met the disability insured status requirements of the Act on February 11, 1994, the date claimant stated she became unable to work, and has acquired sufficient quarters of coverage to remain insured only through June 30, 1999.
2. Claimant has not engaged in substantial gainful activity since February 11, 1994.
3. The medical evidence establishes that on the date her insured status expired the claimant had pain or limitations secondary to carpal tunnel syndrome, hepatitis, fibromyalgia and headaches, impairments which are severe but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning her impairments and their impact on her ability to work are only credible to the extent that they impose limitations in the statement of residual functional capacity.
5. On June 30, 1999, the date her insured status expired, the claimant had a residual functional capacity for a range of sedentary activities with lifting or carrying 10 pounds frequently and 20 pounds occasionally, sitting about 6 hours in an 8 hour work day, and standing or walking about 2 hours in an 8 hour work day. The claimant should also avoid extreme temperatures, rapid repetitive use of the hands with occasional climbing, balancing, stooping, kneeling, crouching and crawling.
6. The claimant's past relevant work as an accounts payable clerk did not require the performance of work functions precluded by her medically determinable impairments.
7. The claimant's impairments do not prevent her from performing her past relevant work on the date her insured status expired.
8. The claimant has not been under a disability, as defined in the Social Security Act, at any time through June 30, 1999, the date her insured status expired.
Tr. 26.
Standard Of Review
The ALJ's decision is binding on the Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir. 1987). The Court must determine whether the record contains substantial evidence to support the decision and whether the ALJ applied the proper legal standards. See Castellano v. Sec'y of HHS, 26 F.3d 1027, 1028 (10th Cir. 1994). While "more than a mere scintilla," substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Evidence is not substantial "if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion." Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (citation omitted).
Analysis
Plaintiff bears the burden of proving disability under the SSA. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). The SSA defines "disability" as the inability to engage in any substantial gainful activity for at least twelve months due to a medically determinable impairment. See 42 U.S.C. § 423(d)(1)(A) (1996). To determine whether a claimant is under a disability, the Commissioner applies a five-step sequential evaluation: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing her past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work. See 20 C.F.R. § 404.1520, 416.920 (1996). If a claimant satisfies steps one, two and three, she will automatically be found disabled; if a claimant satisfies steps one and two, but not three, she must satisfy step four. If step four is satisfied, the burden shifts to the Commissioner to establish that the claimant is capable of performing work in the national economy. See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).
Here, the ALJ denied benefits at step four, finding that plaintiff's impairments did not prevent her from performing her past relevant work as an accounts payable clerk. In reaching his conclusion, the ALJ agreed that plaintiff had several severe impairments but rejected plaintiff's testimony and the opinion of Dr. Bures that she probably could not work full time. See Tr. 25-26.
I. Evaluation Of Plaintiff's Credibility
Plaintiff argues that the ALJ improperly discounted her testimony that her headaches which were not treated by injections lasted for days. See Plaintiff's Brief (Doc. #8) filed November 14, 2002 at 14. The Tenth Circuit has set forth the proper framework for analyzing evidence of disabling pain. The relevant factors are (1) whether claimant proves with objective medical evidence an impairment that causes pain; (2) whether a loose nexus exists between the impairment and the subjective complaints of pain; and (3) whether the pain is disabling based upon all objective and subjective evidence. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). In the final step, the ALJ should consider the following factors:
the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.
Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
The ALJ did not specifically explain why he rejected plaintiff's testimony that her headaches lasted for approximately two days. In general, the ALJ did not find plaintiff fully credible based on (1) the lack of sufficient objective medical evidence to support the testimony, (2) plaintiff's daily activities, and (3) plaintiff's use of medication to control the headaches.
A. Consistency Of Plaintiff's Complaints With Objective Medical Evidence
The ALJ noted a lack of objective medical evidence to support several of plaintiff's complaints, but he did not identify any objective medical evidence which was inconsistent with plaintiff's testimony that her headaches which were not treated by injections lasted for approximately two days. Indeed, the extensive medical documentation supports plaintiff's testimony. See, e.g., Tr. 344, Medical Record dated April 21, 1998 (severe headache for couple of days); Tr. 227, Medical Record dated December 5, 1995 (severe headaches once or twice a month; headaches lasted approximately two days); Tr. 239, Medical Record dated August 6, 1992 (headaches last for 24 to 72 hours).
The Commissioner suggests that on June 2 and 26, 1998, Dr. Jacqueline Dean, M.D., a rheumatology specialist, noted that plaintiff's headaches were "much better controlled," Tr. 652, and "much better." Tr. 651. The ALJ did not rely on Dr. Dean's notations in finding that plaintiff was not fully credible, however, and the Court cannot uphold the ALJ credibility determination on this basis. See Knipe, 755 F.2d at 149 n. 16; see also Mercantile Texas Corp. v. Bd. of Governors of the Fed. Reserve Sys., 638 F.2d 1255, 1260 (5th Cir. 1981) (decision cannot be affirmed on basis of appellate counsel's post hoc rationalizations for agency action); Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (ALJ decision must stand or fall with reasons set forth in decision, as adopted by Appeals Council). In any event, Dr. Dean's notations are overwhelmed by other record evidence. See supra text at 2-6 (outlining extensive history of severe migraine headaches from 1992 through 1999). Dr. Dean apparently did not evaluate plaintiff for treatment of headaches, and she saw plaintiff on only two occasions over a one month period. Finally, Dr. Dean did not specify (1) what time period plaintiff was comparing when she stated that her headaches were much better or (2) the duration or severity of plaintiff's headaches in June of 1998.
B. Plaintiff's Daily Activities
The ALJ apparently concluded that plaintiff's daily activities were inconsistent with her claim of disabling headaches. See Tr. 23. The ALJ noted that plaintiff's daily activities included cooking simple meals, light house cleaning, doing laundry with assistance, and attending church once a week. See Tr. 22-23. Plaintiff does not deny that she engaged in such activities. The record, however, does not reflect that plaintiff could engage in substantial activity when she had severe headaches. Accordingly, plaintiff's daily activities are insufficient to support the ALJ's conclusion that plaintiff was not credible as to the severity and duration of her headaches.
C. Medication
The ALJ found that "claimant is generally able to control her headaches requiring injections about once a month." Tr. 23; see also Tr. 24 (evidence does not indicate that medication is ineffective or results in significant side effects). Substantial evidence does not support this conclusion. The ALJ opinion is based primarily on the fact that plaintiff's migraines resolve relatively quickly after emergency injections. The ALJ did not address plaintiff's testimony that after receiving an injection, she was incapacitated for about two days. See Tr. 39; see also Tr. 239, Medical Record dated August 6, 1992 (Stadol and Phenergan injections usually put plaintiff to sleep). The ALJ also did not address the duration or severity of plaintiff's headaches which she treats with Demerol about three times a month. Plaintiff testified that she generally did not go to the emergency room until she started to experience vomiting and nausea, see Tr. 40, and that her headaches usually lasted about two days. See Tr. 41. No evidence suggests that Demerol immediately controlled plaintiff's headaches or reduced the severity of plaintiff's headaches such that she could work during that one or two day period. Cf. Tr. 41 (plaintiff testified that she could not get out of bed for one or two days until headache wore off); Tr. 344, Medical Record dated April 21, 1998 (plaintiff had severe headache for couple of days); Tr. 227, Medical Record dated December 5, 1995 (severe headaches once or twice per month; headaches last approximately 2 days); Tr. 239, Medical Record dated August 6, 1992 (headaches last for 24 to 72 hours). Finally, the Court finds no evidence (and certainly not substantial evidence) which supports the ALJ conclusion that plaintiff's medications caused no significant side effects. Cf. Tr. 41 (plaintiff testified that medications made her very tired and usually knocked her out).
In sum, the ALJ addressed plaintiff's credibility on some issues, but he did not explain the evidence on which he rejected plaintiff's testimony as to the frequency, duration and severity of her headaches, and the effectiveness and side effects of her medications. Even under this Court's very limited scope of review, it cannot find that the ALJ determination on credibility is supported by substantial evidence. See Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (evidence not substantial if it really constitutes not evidence but mere conclusion); Knipe, 755 F.2d at 145.
For example, the ALJ rejected plaintiff's testimony that about half the time, she had "bad days" which precluded her from full-time work. Tr. 24.
II. ALJ's Evaluation Of Dr. Bures' Opinion
Plaintiff argues that the ALJ should have given controlling weight to the opinion of Dr. Bures, a treating physician. The ALJ must give substantial weight to the opinion of a treating physician "unless good cause is shown to disregard it." Goatcher v. United States Dep't of HHS, 52 F.3d 288, 289-90 (10th Cir. 1995). When a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine reports of other physicians to see if they outweigh the reports of the treating physician. See id. The ALJ must consider the following specific factors to determine what weight to give any medical opinion: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. Id. at 290 (citing 20 C.F.R. § 404.1527(d)(2)-(6)). The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled. See Goatcher, 52 F.3d at 290.
On June 29, 1998, approximately one year before plaintiff's disability insured status expired, Dr. Bures opined that plaintiff probably could not work full time and that her condition was not likely to resolve in less than 12 months. Dr. Bures noted that primarily, plaintiff would be precluded from full-time work because of profound fatigue and body aches and frequent problems with migraine headaches. Tr. 315. The ALJ gave the following reasons for discounting Dr. Bures' opinion:
the undersigned has considered the letter dated June 29, 1998 from Dr. Bures which noted that the claimant was possibly precluded from full time work at that time (exhibit 7F/1). This was the period of time when the claimant was being tested for Hepatitis. Since then the claimant was switched to Imuran therapy and the gastrointestinal specialist reported that she is doing well. Dr. Bures's medical opinion is not conclusive nor supported by the record as a whole and as such cannot be given controlling weight ( 20 C.F.R. § 404.1527, SSR 96-2p, 96-5p). Overall, the evidence indicates that the claimant is capable of sedentary type activities on a consistent basis.
Tr. 22.
The ALJ apparently discounted Dr. Bures' opinion under the third and fourth factors. The catch-all, conclusory statement that Dr. Bures' opinion is not "supported by the record as a whole" is insufficient to reject the opinion of a treating physician. See Goatcher, 52 F.3d at 289-90 n. 2 (failure to give specific, legitimate reasons for disregarding treating physician opinion is miscarriage of justice warranting reversal). The ALJ did not specifically explain what weight (if any) he gave to the other factors outlined in Goatcher. The ALJ also misquoted the letter from Dr. Bures. Dr. Bures stated that plaintiff was "probably" precluded from full time work, not "possibly." Though not conclusive, Dr. Bures' opinion is adequately supported by the record as a whole and is consistent with several of the ALJ findings. The ALJ acknowledged that plaintiff had severe headaches which required home treatment with Demerol about three times per month and that about once a month, she had to go the emergency room for injections because Demerol was ineffective. Tr. 22 (ALJ's findings). When she arrived at the emergency room, plaintiff usually was suffering from pain, nausea and vomiting.
The ALJ also did not challenge plaintiff's testimony and medical evidence that her headaches lasted approximately two days. Based on the uncontested evidence, plaintiff suffered from severe headaches approximately six days a month. The ALJ may have had legitimate reasons for rejecting the purported length and severity of her headaches, but he did state on the record any reason to do so. Based on the extensive medical documentation of plaintiff's migraine headaches associated with nausea and vomiting, and the length of plaintiff's severe headaches each month, the ALJ erred by failing to give specific, legitimate reasons for disregarding Dr. Bures' opinion.
The ALJ apparently assumed that Dr. Bures' opinion of plaintiff's ability to work was based primarily, if not exclusively, on her liver condition. Dr. Bures specifically stated, however, that plaintiff's inability to work full time was partly because of frequent problems with migraine headaches. Tr. 315. The ALJ did not criticize Dr. Bures for failing to differentiate the impact of plaintiff's liver condition and the impact of her migraine headaches. In light of his findings which acknowledged a significant history of both liver disease and migraine headaches, the ALJ at least should have outlined why neither condition would preclude full time work.
III. Hypothetical Questions To Expert
Plaintiff also asserts that the ALJ decision is not supported by substantial evidence because his hypothetical question to the vocational expert did not include the facts that she suffered from pain, was fragile and showed considerable difficulty with attention. Because the Court remands this case on other issues, it need not address this argument. The ALJ may need to revise his hypothetical question, however, to include any additional impairments he finds on remand. Moreover, if the ALJ finds that plaintiff suffers from pain and fatigue (as he did in his first decision), he shall include specific findings as to the impact such impairments may have on plaintiff's ability to engage in full-time work.
IV. Conclusion
For the reasons outlined above, the Court must remand the case for further proceedings for the ALJ to further explain his ruling or award benefits. In particular, the ALJ should explain (1) upon what evidence he rejects plaintiff's testimony as to the frequency, duration and severity of her headaches, and the effectiveness and side effects of her medications; (2) upon what evidence he rejects Dr. Bures' opinion as to plaintiff's ability to work, including specific reference to the factors outlined in Goatcher v. United States Dep't of HHS, 52 F.3d 288, 290 (10th Cir. 1995) and 20 C.F.R. § 404.1527(d); and (3) upon what evidence he finds that plaintiff's pain and fatigue does not impact her ability to work full time.
IT IS THEREFORE ORDERED that Plaintiff's Brief (Doc. #8) filed November 14, 2002, which the Court construes as a motion for judgment, be and hereby is SUSTAINED in part.
IT IS FURTHER ORDERED that the Judgment of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this memorandum and order.