United States District Court, E.D. Arkansas, Jonesboro Division
ORDER REMANDING TO THE COMMISSIONER
T. KEARNEY UNITED STATES MAGISTRATE JUDGE
Harris applied for Social Security disability benefits with
an alleged onset date of April 15, 2011. (R. at 57). The
administrative law judge (ALJ) denied Harris’s
applications, and the Appeals Council declined to review the
decision. (R. at 1). Harris has requested judicial review of
the ALJ’s decision, which now stands as the
Commissioner’s final decision. The parties have
consented to the jurisdiction of the Magistrate Judge.
reasons stated below, this Court reverses and remands the
The Commissioner’s Decision
determined that Harris had the severe impairments of
fibromyalgia, lupus, carpal tunnel syndrome, and restless leg
syndrome. (R. at 16). The ALJ found that Harris had the
residual functional capacity to perform light work except
that she must avoid concentrated exposure to extreme heat and
sunlight and can only use her hands to handle and finger
frequently. (R. at 18).
receiving testimony from a vocational expert (VE), the ALJ
found that Harris could return to past relevant work as a
retail sales clerk. (R. at 21). The ALJ thus found Harris to
not be disabled at step 4 of the five step evaluative
process. (R. at 21).
argues that substantial evidence does not support the
Commissioner’s decision. She contends that the ALJ
erred in failing to give the appropriate weight to a treating
physician’s opinion and in finding that opinion
inconsistent with other evidence in the record. She also
maintains that the Appeals Council failed to consider new and
the duty of the Court to determine whether substantial
evidence on the record as a whole supports the ALJ’s
decision. Long v. Chater, 108 F.3d 185, 187 (8th
Cir. 1997). "Substantial evidence" is evidence that
a reasonable mind would find sufficient to support the
ALJ’s decision. Slusser v. Astrue, 557 F.3d
923, 925 (8th Cir. 2009). Reversal is not warranted merely
because substantial evidence exists to support a contrary
conclusion. Long, 108 F.3d at 187. The Court must
conduct a "scrutinizing analysis" by evaluating in
detail all the evidence used in making the decision and how
any contradictory evidence balances out. Wilcutts v.
Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998). "In
short, a reviewing court should neither consider a claim de
novo, nor abdicate its function to carefully analyze the
entire record." Id.
rheumatologist opined that Harris could lift and/or carry no
more than 10 pounds. (R. at 330-31). The ALJ gave this
opinion reduced weight because the ALJ believed it to be
inconsistent with statements that Harris made regarding
"lifting furniture as recently as January 2014, "
as well as with normal EMG findings. (R. at 19). Harris
maintains that the ALJ should have given greater weight to
the rheumatologist’s opinion and that the ALJ
incorrectly found the opinion inconsistent with the other
evidence in the record.
general, a treating physician’s opinion regarding a
claimant’s impairment is entitled to controlling
weight, as long as it is "well-supported by medically
acceptable clinical and diagnostic techniques and is not
inconsistent with other substantial evidence in the
record." Singh v. Apfel, 222 F.3d 448, 452 (8th
Cir. 2000). Whatever weight the ALJ gives the opinion, the
ALJ must give good reason for assigning that weight.
Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir.
decision, the ALJ referred multiple times to statements that
indicated that Harris had been moving furniture in January of
2014. (R. at 18, 19, 20). This appears to relate to treatment
records from a treating physician who examined Harris for
wrist pain. (R. at 372). However, the records clearly
indicate that the pain began from moving in October of 2012.
(R. at 369). The records indicate that moving furniture
precipitated the pain, but they also state that the pain had
been persisting for "at least a year and a half."
(R. at 372). The ALJ seemingly assumed that Harris’s
pain began in January 2014 because the treatment date was in
January 2014. (R. at 372). As the assessment from
Harris’s rheumatologist was given in March of 2013-well
after the onset of the pain- the ALJ’s reliance on
these records to show an inconsistency with the medical
assessment was in error.
the assessment related to Harris’s fibromyalgia, but
the ALJ found the assessment inconsistent with normal EMG
findings. (R. at 361-62). The Merck Manual indicates
that diagnosis of fibromyalgia is based upon pain at specific
tender points and a history of widespread pain. The Merck
Manual, 376 (Robert S. Porter et al, eds., 19th ed.
2011). No confirming diagnostic tests exist, and the Eighth
Circuit has reversed where an ALJ found that fibromyalgia was
not substantiated by objective medical testing. Garza v.
Barnhart, 397 F.3d 1087, 1089 (8th Cir. 2005). The
normal EMG findings are not inconsistent with Harris’s
rheumatologist also suggested that Harris practice aquatic
therapy and yoga. (R. at 375). The ALJ interpreted this
recommendation as an indication that Harris retained the
ability to work. (R. at 18, 20). This course of treatment is
consistent with that recommended by The Merck Manual
for fibromyalgia, which includes stretching and aerobic
exercise to alleviate symptoms. The Merck Manual,
376. Recommendations of therapeutic exercise do not indicate