Eula Forehand v. Jo Anne B. Barnhart ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2887
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Eula Forehand, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, *
*
Appellee. *
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Submitted: January 16, 2004
Filed: April 26, 2004
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Before BYE, HEANEY, and SMITH, Circuit Judges.
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HEANEY, Circuit Judge.
Eula Forehand appeals from a decision of the district court finding that there
was substantial evidence in the record to support the decision of an administrative law
judge (ALJ) that Forehand was not entitled to social security disability benefits. After
a thorough review of the record, we reverse and remand to the district court with
directions to remand to the ALJ for proceedings consistent with this opinion.
BACKGROUND
Eula May Forehand was born on March 6, 1945, and has a high school
education. She worked at DuPont Medical from 1976 to 1991 as a machine operator,
earning honors for efficiency, and then worked as an assembler at Dana for a few
months in 1992. Throughout the 1990s, she received medical treatment from a
number of doctors for fibromyalgia, osteoarthritis in her hands, carpal tunnel
syndrome, depression, and dysthymia. She has not engaged in substantial gainful
employment since at least April 13, 1996.
In 1998, Forehand applied for social security disability benefits. Her claim was
denied initially and on reconsideration. On March 16, 1999, a de novo hearing was
held before an ALJ. The ALJ issued a decision on August 26, 1999, denying benefits.
The ALJ found that despite Forehand’s claims of disability and supporting evidence,
she did not suffer any severe mental impairments and did not have an impairment that
equaled a presumptively disabling impairment listed in the relevant regulations. The
ALJ listed a number of what it considered “clear and convincing reasons for rejecting
[Forehand’s] allegations of her limitations”: 1) no objective evidence supported
Forehand’s allegations of limitations; 2) she did not need assistive devices to walk;
3) she did not demonstrate any memory or concentration problems; 4) she did not
exhibit any atrophy, significant weight changes, or difficulty moving; 5) each one of
her medical examiners found her to be in no apparent distress and fully oriented; 6)
she chose a conservative course of treatment; 7) she was never treated by a
psychiatrist or psychologist; 8) she did not suffer debilitating side effects from her
medication; 9) she told Dr. Richard Hester, a one-time consultative examiner, that she
was doing “fairly well” with her treatment; and 10) her activities, such as caring for
her personal needs and hygiene, doing laundry and other housework, and once
moving furniture, contradicted her allegations of disabling limitations. (Tr. at 37-38.)
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Forehand provided the ALJ with letters from witnesses supporting her claim
of disability, medical records documenting her diagnoses and treatment history, and
an opinion letter from Dr. Robert Quevillon, stating:
I have attended the care of Eula Forehand since April 1996.
During and before this time, she has been disabled by both chronic and
severe fatigue and chronic pain. Fibromyalgia was diagnosed by
another doctor in 1990. Because of these problems, she has had
recurrent depression and dysthemia.
Enclosed you will find her medical records. I do believe she is
disabled.
(Id. at 181.)
The ALJ found Dr. Quevillon’s opinion was entitled to minimal weight
because he “did not include any objective findings to substantiate his opinion” and
“substantial evidence contradicts this opinion.” (Id. at 36). After hearing from a
vocational expert who opined that Forehand could return to her past relevant manual
labor work, the ALJ denied benefits. The district court affirmed, and this appeal
followed.
ANALYSIS
“We will affirm the ALJ’s findings if they are supported by substantial
evidence on the record as a whole.” Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir.
1998). To assess the ALJ’s decision, we consider the evidence that both supports and
detracts from it. Cantrell v. Apfel, 231 F.3d 1104, 1106 (8th Cir. 2000). Our court
“should neither consider a claim de novo, nor abdicate its function to carefully
analyze the entire record.” Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir. 2002)
(quoting Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998)).
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The issue before us is whether there is substantial evidence based on the whole
record to support the ALJ’s conclusion that Forehand can do her past relevant work.
The answer to this question turns on whether: 1) the ALJ properly discounted the
opinion of Forehand’s treating physician, Dr. Quevillon; 2) the ALJ properly
determined that Forehand does not suffer from significant mental impairments; and
3) Forehand’s testimony about the severity of her pain and physical limitations was
credible. These matters further require us to consider whether the ten “clear and
convincing reasons” for rejecting Forehand’s claimed limitations have support in the
record.
In a letter attached to Forehand’s medical records, Dr. Quevillon stated his
belief that Forehand–his patient for the better part of three years–was disabled. The
primary reason given by the ALJ for disregarding Dr. Quevillon’s opinion was that
Dr. Quevillon made a disability conclusion, “which is reserved to the Commissioner.”
(Tr. at 36.) The ALJ also found the letter to be inconsistent with the opinion of Dr.
Hester, gleaned from his single examination, that Forehand was capable of work
activities. Our review of the record leads us to conclude that the ALJ improperly
discounted the opinion of Dr. Quevillon.
“A treating physician’s opinion is generally entitled to substantial weight,
although it is not conclusive and must be supported by medically acceptable clinical
or diagnostic data.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). In Cox
v. Barnhart, 345 F.3d 606, 608 (8th Cir. 2003), the ALJ rejected an opinion letter
from the claimant’s treating physician, finding it conclusory and an invasion upon the
province of the Commissioner’s decision-making authority. We noted that if the
letter “were the only available record from [the treating physician], the ALJ would
have been correct in giving it little weight due to its conclusory nature.” Id. at 609.
As here, however, that was not the case: the letter was only part of a larger record
that fully supported the opinion of the claimant’s treating doctor. Id. Just as the
claimant in Cox had established a history of treatment for fibromyalgia supported by
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her medical record, so, too, has Forehand; beginning in the early 1990's, she saw a
number of doctors complaining of symptoms consistent with her allegations of
limitation.
In 1993, Dr. Jerry Nash treated Forehand for her complaints of pain and
numbness. He suggested that she may be suffering from carpal tunnel syndrome, but
was “concerned about other potential causes,” including fibromyalgia. (Tr. at 158.)
Dr. Randy D. Roberts of the Northeast Arkansas Internal Medicine Clinic treated
Forehand from March 16, 1993 through April 15, 1996. He diagnosed her with
fibromyalgia and sacralization of the lumbar spine. He repeated this diagnosis on
April 23, 1993; May 21, 1993; June 18, 1993; October 8, 1993; March 28, 1994;
October 19, 1994; February 28, 1995; June 7, 1995; August 15, 1995; and January 30,
1996.
Dr. Quevillon began treating Forehand in April of 1996. He treated her on at
least twenty occasions from April 25, 1996 to April 28, 1998. His medical reports
indicate that she suffered from chronic pain throughout her body, headaches, back
problems, depression, withdrawal, and lack of concentration. He diagnosed her with
fibromyalgia, depression, and dysthemia, and prescribed medication to alleviate her
symptoms.1 On some occasions, Forehand would feel better than others, but Dr.
Quevillon’s basic diagnosis remained the same throughout his treatment of her.
Clearly, Dr. Quevillon’s opinion letter was not only supported by his own medical
observations, but was entirely consistent with the findings and diagnoses of
Forehand’s past treating physicians.
1
As is so frequently the case, many medical reports, and particularly those of
Dr. Quevillon, are very, very difficult to read. We reiterate that “the ALJ, on behalf
of the Commissioner, is charged with the duty of fully and fairly developing the facts
of the case.” Hildebrand, 302 F.3d at 838. This responsibility includes, at the very
least, ensuring that this court is provided with an appellate record that is readable by
supplementing the record through additional testimony or exhibits where necessary.
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Forehand long exhibited symptoms consistent with fibromyalgia, such as sleep
deprivation, fatigue, and pain. See Kelley, 133 F.3d at 589 (noting fibromyalgia
“often leads to a distinct sleep derangement which often contributes to a general cycle
of daytime fatigue and pain”). The disease is chronic, and “[d]iagnosis is usually
made after eliminating other conditions, as there are no confirming diagnostic tests.”
Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003). In light of the medical
reports and record in this case, it appears the ALJ gave little weight to the consistent
diagnosis of fibromyalgia or its debilitating effect on Forehand. We have long
recognized that fibromyalgia has the potential to be disabling, id. at 678, and find the
ALJ erred by not crediting Dr. Quevillon’s opinion letter to that effect. Moreover,
to the extent that Dr. Hester’s report was inconsistent with Forehand’s historical
diagnoses and treatment, the ALJ erred by giving greater weight to Dr. Hester’s
report. See Kelley, 133 F.3d at 589 (“The opinion of a consulting physician who
examines a claimant once or not at all does not generally constitute substantial
evidence.”).
Forehand testified that she has difficulty sleeping at night; has a lot of
headaches and pain in her shoulder, hand, and back; can walk only one-eighth of a
mile before being forced to sit down and recover for thirty minutes; can stand for an
hour and then must lay down to ease the pain; can sit for only thirty minutes without
standing; and can lift only a broom, cup, or glass at home. She has difficulty bending,
stooping, and squatting. She can dress herself, and does some housework. She drives
seven miles to see her parents a few times a week. She has no hobbies, and attends
no social activities. The ALJ rejected Forehand’s testimony as not credible for the
reasons stated earlier in this opinion. We disagree, and find the reasons listed by the
ALJ are either unsupported by the record or unpersuasive on the issue of whether
Forehand’s allegations of limitation are true. The medical reports of many treating
physicians amply support her allegations of pain and limitation. The fact that she
does not use assistive devices to walk is simply no reason to reject her claims of pain,
particularly in light of medical reports that support her complaints of trouble with
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walking and standing. As to her mental state, tests administered by David C. Loe,
Ph.D., a consultive psychologist, indicate that Forehand has significant memory and
concentration difficulties, and suffers from depression. While Forehand may not have
sought specific psychiatric treatment, she did consistently seek treatment from
physicians for her mental health, as evidenced by Dr. Quevillon’s notes and
prescriptions. Moreover, even crediting the ALJ’s determination that Forehand took
a conservative approach to treating her ailments, we fail to see the significance of that
fact, especially considering that Forehand must pay for each doctor visit in cash out
of her own pocket.
The ALJ further found that Forehand’s allegations of limitation were
inconsistent with her daily activities. Forehand’s ability to engage in some life
activities, however, does not support a finding that she retains the ability to work.
See Brosnahan, 336 F.3d at 677 (“[W]e have held, in the context of a fibromyalgia
case, that the ability to engage in activities such as cooking, cleaning, and hobbies,
does not constitute substantial evidence of the ability to engage in substantial gainful
activity.”). We have long stated that to determine whether a claimant has the residual
functional capacity necessary to be able to work we look to whether she has “the
ability to perform the requisite physical acts day in and day out, in the sometimes
competitive and stressful conditions in which real people work in the real world.”
McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc). This test is
consistent with relevant regulations on the issue, see 20 C.F.R. § 404.1545, and we
have reiterated it on a number of occasions, see, e.g., Cox, 345 F.3d at 610 (restating
McCoy standard); Wilcutts, 143 F.3d at 1137 (noting the “most important issue” in
a disability determination is whether the claimant has “the ability to do the requisite
physical acts day in and day out, in the sometimes competitive and stressful
conditions in which real people work in the real world”); Ingram v. Chater, 107 F.3d
598, 604 (8th Cir. 1997) (repeating McCoy test); Pope v. Bowen, 886 F.2d 1038,
1041 (8th Cir. 1989) (same); Martonik v. Heckler, 773 F.2d 236, 239-40 (8th Cir.
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1985) (same). Notwithstanding this well-settled case law, our mandate is frequently
ignored, and appears to have been in this case.
CONCLUSION
Forehand’s allegations of limitation, evidenced by her subjective complaints
of physical and mental distress, were consistent with the great majority of reports of
her physicians and her examining psychologist. The ALJ erred by disregarding her
testimony and the opinion of her treating physician. We reverse and remand to the
district court with directions to remand to the ALJ for reconsideration consistent with
this opinion.
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