Jill Tilley v. Michael J. Astrue ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3537
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Jill Tilley, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Michael J. Astrue, Commissioner *
of Social Security Administration, *
*
Appellee.
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Submitted: April 15, 2009
Filed: September 1, 2009
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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
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WOLLMAN, Circuit Judge.
Jill Tilley appeals from the district court’s judgment affirming the denial of her
application for disability insurance benefits pursuant to Title II of the Social Security
Act, 42 U.S.C. § 401, et seq. We reverse and remand.
I. Background
To qualify for disability insurance benefits, Tilley was required to establish that
she was disabled before her insurance expired on September 30, 1998. See 42 U.S.C.
§ 416(i) (defining the terms “disability” and “period of disability”); § 423(a)
(describing who is entitled to disability insurance benefits); see also Moore v. Astrue,
572 F.3d 520, 522 (8th Cir. 2009) (Claimant must “establish her being disabled prior
to the expiration of her insurance to be entitled to disability insurance benefits”). Thus
the relevant time period is from her alleged disability onset date, March 1, 1998, until
the date her insured status expired, September 30, 1998.
A. Personal History
Tilley was born on March 21, 1944. She is a high school graduate and has
completed some college courses. From 1978 to 1991, Tilley worked in food services
as a cafeteria worker. She was fired when she was no longer physically able to
perform her job. Tilley has not engaged in substantial gainful activity since her
alleged disability onset date, though she worked from 2001 through 2003 as a product
demonstration person, handing out samples to customers at a Walmart store. In that
position, Tilley worked either one day a week or every other weekend for six hours
on Saturday and six hours on Sunday. She testified that after working her weekly
shift, “it’d take me nearly another week to get healed up to go back and do that one
Saturday.” Admin. R. at 728.
Tilley alleges that she became disabled due to fibromyalgia, hypoglycemia,
hypertension, and degenerative changes of the cervical and lumbar spines. In 1983
and 1991, Tilley underwent surgery of the cervical spine. The first surgery was
successful and alleviated her left upper extremity pain. Her second surgery was less
so, and Tilley continued to suffer from back, neck, and right arm pain.
Tilley completed Social Security Disability Supplemental Interview Outlines
in October 2002 and August 2003. She reported that her pain was located in her lower
back, her neck, and her right side (shoulder, arm, and leg) and that it would subside
only when her medications took effect. She could not engage in activities that
required repetitive motion or heavy lifting. Tilley’s ability to complete household
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chores was limited, but she could launder clothes, wash dishes, change sheets, prepare
simple meals, and complete short errands. Even though she was able to complete
those household tasks, things like cleaning, cooking, standing, driving, and working
caused pain or other symptoms. Other than attending church, Tilley’s recreational
activities were solitary and sedentary; she no longer visited friends or family.
At her 2005 hearing before an administrative law judge (ALJ), Tilley testified
that her condition was about the same as it was in 1998, although in 1998 she was
taking more pain medication—four to six Darvocet1 each day—and receiving trigger
point injections in her lower back, neck, shoulder, and arm. She testified that she felt
“real tired and draggy” and that her medications upset her stomach and some made her
“a little woozy.” Admin. R. at 737, 730. Tilley’s hypoglycemia was troubling her in
1998, and she “was throwing up, dizzy, couldn’t stand up straight.”2 Id. at 736. Tilley
also testified that she has suffered hearing loss, that she has pain from fibromyalgia,
and that she takes medication to manage her high blood pressure.
Tilley’s testimony concerning her daily activities was consistent with the
information she provided in the interview outline. She explained that she does light
housework and that her husband does the vacuuming, sweeping, and mopping.
Tilley’s husband also makes breakfast, while she might microwave something for
lunch and make a sandwich or a bowl of cereal for supper. Tilley testified that she
goes to bed around 11:00 p.m. because being in bed for too long causes pain and she
often is unable to sleep through the night, despite being on medication to assist her in
doing so. Once a week, Tilley teaches a children’s Bible study class at the church she
attends. She rarely drives, and when she does, it is for a short distance (three to four
1
Darvocet is a narcotic pain medication indicated for the relief of mild to
moderate pain. Physician’s Desk Reference 3497 (60th ed. 2006).
2
Tilley testified that she became diabetic after losing weight.
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miles). She watches television and reads short magazine articles, but she no longer
has any hobbies.
B. Medical History
In February 1991, Randy Roberts, M.D., diagnosed Tilley with fibromyalgia
and osteoarthritis. Tilley had been having problems sleeping due to back and neck
pain on her right side. Dr. Roberts found that her neck had lost about ten degrees
rotation on either side, and a cervical spine x-ray revealed significant osteoarthritis.
Despite repeated treatment for pain in her back and neck, Tilley’s condition did not
improve, and she underwent the second surgery on her cervical spine. Dr. Roberts
continued to treat Tilley for pain and hypoglycemia through 1996. Darrell Ragland,
M.D., began treating Tilley in 1994.
Throughout 1997 and 1998, Dr. Ragland and William Hurst, D.O., treated
Tilley repeatedly for fibromyalgia and for pain in her back, neck, joints, and right side.
Her treatment included trigger point injections, Darvocet and Trilisate3 for pain, either
Soma4 or Flexeril5 for muscle relaxation and sleep, Trazodone6 for sedation, either
3
Trilisate is a nonsteroidal, anti-inflammatory preparation and is prescribed for
osteoarthritis, rheumatoid arthritis, and acute painful shoulder. Physicians’ Desk
Reference 2846-48 (58th ed. 2004).
4
Soma is prescribed to relieve discomfort associated with acute, painful
musculoskeletal conditions. Physicians’ Desk Reference 1931-33 (63d ed. 2009).
Soma may have sedative properties. Id. at 1931.
5
Flexeril is prescribed to relieve skeletal muscle spasms associated with acute,
painful musculoskeletal conditions. Physicians’ Desk Reference 1832-33 (60th ed.
2006).
6
Trazodone is prescribed for treatment of depression. Physicians’ Desk
Reference 520-22 (49th ed. 1995).
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Tenex or Hyzaar7 for hypertension, and Premarin8 for hormone replacement. In July
1997, Dr. Hurst treated Tilley for “persistent fibromyalgia type pain that has been very
debilitating” and adjusted her medications to try to find a more effective treatment.
Admin. R. at 447. Tilley had hung wallpaper a few days earlier, and Dr. Hurst
remarked that the activity “could cause some of this soreness” that Tilley was
experiencing in her right arm, right leg, and neck. Id.
In his treatment notes following an office visit in January 1999, Dr. Ragland
noted that Tilley had been working in the deli at Walmart, but was resigning that day
because the work was too difficult.
By letter dated January 4, 2008, Dr. Ragland opined that Tilley could no longer
work:
Jill Tilley is a patient that I have followed for many years who carries the
diagnosis of degenerative arthritis, fibromyalgia, diabetes type 2,
hypertension, and generalized anxiety. These conditions have worsened
to the point that I believe that she is unable to continue to work. She is
maintained on several different medications, and these medications have
been adjusted in an attempt to control her pain better, but without much
success. She is maintained on glucophage, flexeril, maxide, actonal,
trazadone, lotension, glucotrol, and some prn darvocet.
Id. at 200.
7
Tenex and Hyzaar are indicated for the treatment of hypertension. Mosby’s
2002-2003 Medical Drug Reference 477-78 (2002) (Tenex); Physicians’ Desk
Reference 1996-2001 (64th ed. 2008) (Hyzaar).
8
Premarin is prescribed for hormone replacement. Physicians’ Desk Reference
3221-28 (63d ed. 2009).
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Dr. Ragland also completed a medical source statement assessing Tilley’s
physical capabilities from 1998 to June 2004. He opined that she could frequently and
occasionally lift and/or carry less than ten pounds; that she could stand and/or walk
for a total of two hours, continuously for fifteen minutes; and that she could sit for a
total of eight hours, continuously for one hour. He reported that she had a limited
ability to use hand or foot controls; that she should never climb, balance, or crouch;
and that she could occasionally stoop, kneel, and bend. Her reaching, fingering,
feeling, hearing, and speaking were unlimited, but her handling and sight were
limited. Dr. Ragland remarked that Tilley “drops items due to [range of motion] neck
loss.” Id. at 199.
C. Administrative History
Tilley filed for disability insurance benefits in August 2003, and her claim was
denied initially and on reconsideration. A vocational expert testified at the 2005
hearing that Tilley’s past relevant work in food service constituted light, semi-skilled
work.
The ALJ undertook the familiar five-step test to determine whether Tilley was
disabled as of September 30, 1998.9 The ALJ found that Tilley met the first two steps
of the analysis: she had not engaged in substantial gainful activity since the alleged
onset of disability date, and her impairment was severe. Because her impairment did
not meet or equal those listed in the Social Security regulations, the ALJ proceeded
to the fourth step, which asks whether Tilley could perform her past relevant work.
9
The five steps are: (1) whether the claimant is engaged in any substantial
gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.
1; (4) whether the claimant can return to her past relevant work; and (5) whether the
claimant can adjust to other work in the national economy. 20 C.F.R. §
404.1520(a)(5)(i)-(v).
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The ALJ found that Tilley had the residual functional capacity to perform light work10
as of the date last insured and thus could have returned to her work in food services.
Accordingly, the ALJ determined that she did not meet the Social Security Act’s
definition of disabled and denied her claim for benefits.
In concluding that Tilley could perform her past relevant work, the ALJ rejected
Dr. Ragland’s opinion, discrediting it based on Tilley’s activities prior to and
immediately following the last date of insurance coverage.
II. Analysis
We review de novo the district court’s decision affirming a denial of Social
Security benefits. Minor v. Astrue, No. 08-3375, 2009 WL 2244597 at *1 (8th Cir.
July 29, 2009). We affirm the denial of such benefits when the substantial evidence
on the record as a whole supports the ALJ’s decision. Id. This standard requires a
more searching review than the substantial evidence standard, and we take into
account record evidence that fairly detracts from the ALJ’s decision. Id. “[T]he court
must also take into consideration the weight of the evidence in the record and apply
a balancing test to evidence which is contradictory.” Id. (citations omitted).
“Reversal is not warranted, however, ‘merely because substantial evidence would
10
The Social Security regulations state:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls.
To be considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these activities.
20 C.F.R. § 404.1567(b).
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have supported an opposite decision.’” Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.
2005) (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)).
The issue before us is whether there is substantial evidence based on the record
as a whole to support the ALJ’s conclusion that Tilley could have performed her past
relevant work in food services as of September 30, 1998. The answer turns on
whether it was appropriate to discredit the opinion of Tilley’s treating physician, Dr.
Ragland.
Tilley argues that the ALJ’s failure to give controlling weight to the opinion of
her treating physician contradicted the rules established in 20 C.F.R. § 404.1527 and
SSR 96-2p. A treating physician’s opinion is given controlling weight if it “is well-
supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [a claimant’s] case record.”
20 C.F.R. § 404.1527(d)(2); see also SSR 96-2p, 1996 WL 374188, at *2 (Social
Security Administration, July 2, 1996) (When a treating source renders a medical
opinion that is well supported by medically acceptable diagnostic techniques and
consistent with the other substantial evidence in the claimant’s record, “the
adjudicator must adopt a treating source’s medical opinion irrespective of any finding
he or she would have made in absence of the medical opinion.”). The record must be
evaluated as a whole to determine whether the treating physician’s opinion should
control. Reed, 399 F.3d at 920. The regulations require the ALJ to “always give
good reasons” for the weight afforded to the treating source’s opinion. 20 C.F.R. §
404.1527(d)(2).
Dr. Ragland’s opinion that Tilley cannot perform light work is consistent with
the evidence in the administrative record. Tilley testified that she was first diagnosed
with fibromyalgia by Dr. Miller, who performed Tilley’s cervical spine surgery in
1983. Tilley’s medical records indicate that Dr. Roberts, Dr. Ragland, and Dr. Hurst
diagnosed and treated her for fibromyalgia and degenerative spine issues. The records
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from the relevant time period document her repeated reports of pain, much of which
the doctors attributed to fibromyalgia, as well as her back and neck problems. Both
Dr. Ragland and Dr. Hurst prescribed trigger point injections, narcotic pain
medications (including Darvocet), and sleep aides and muscle relaxers (including
Soma and Flexeril). Tilley’s substantial pain management medications lend further
support to Dr. Ragland’s opinion.
The ALJ did not rely on conflicting or inconsistent medical assessments to
discredit Dr. Ragland’s opinion. This is not a case in which different treating doctors
have offered varied opinions. See Hamilton v. Astrue, 518 F.3d 607, 611-12 (8th Cir.
2008) (treating doctor’s opinion conflicted with another doctor’s treatment notes);
Casey v. Astrue, 503 F.3d 687, 692-93 (8th Cir. 2007) (treating rheumatologist’s
opinion inconsistent with other doctors’ treatment notes). Dr. Hurst’s treatment notes
are fully consistent with Dr. Ragland’s opinion. For example, in 1997, Dr. Hurst
diagnosed Tilley with hypertension (controlled), dyspepsia, fibromyalgia, and right
lumbar strain, noting that “there is some exquisite tenderness and a couple of
triggerpoints noted in the lower thoracic muscles in the right paravertebral
musculature. The patient can heel walk and toe walk well but there is persistent right
hip and right lumbar pain at examination.” Admin. R. at 454. Moreover, the ALJ did
not rely on a consultative physician’s assessment to discount Dr. Ragland’s opinion.11
Cf. Hamilton, 518 F.3d at 611-12 (concluding that the findings of consultative doctor
served as some evidence to discredit the opinion of the treating doctor’s opinion); see
also Moore, 572 F.3d at 523-24 (concluding that one consulting physician’s residual
functional capacity assessment supported the ALJ’s finding when claimant provided
no contrary assessment). The only substantiated medical opinion in this case is Dr.
11
In 2003, state agency physician Steve Owens, M.D., completed a residual
functional capacity assessment, concluding that Tilley had the ability to perform
medium work activity. Dr. Robert Redd affirmed Dr. Owen’s assessment. The ALJ
assigned little weight to the assessment because “the formulation was reached without
benefit of testimony and current medical documentation.” Admin. R. at 16.
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Ragland’s, and his opinion is consistent with Tilley’s medical records from the
relevant time period. Cf. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)
(treating physicians’ conclusory and inconsistent opinions properly discounted);
Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (inconsistent and unsupported
portions of the treating physician’s medical source statements properly discounted).
We disagree with the Commissioner’s argument that the facts in Tilley’s case
are comparable to those in Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2004). In
Krogmeier, the treating psychiatrist rendered an opinion in 1997 that the claimant was
disabled prior to his date last insured, December 31, 1994. Id. at 1023. The
psychiatrist’s treatment notes from the relevant time period, however, told a different
story, stating that the claimant “was ‘1000% better,’ ‘back to his old self,’ and ‘well-
maintained.’” Id. After considering the medical records, the opinion of a consulting
physician, the claimant’s lack of motivation to return to work, and his testimony
regarding his daily activities, the ALJ determined that the claimant was capable of
some work. Id. at 1024. We concluded that substantial evidence in the record
supported the ALJ’s decision. Id. Like the treating physician’s opinion in Krogmeier,
Dr. Ragland rendered his opinion that Tilley was disabled years after her date last
insured. Unlike the facts in Krogmeier, however, Dr. Ragland’s treatment notes from
the relevant time period were entirely consistent with his 2004 opinion and medical
source statement.
An incomplete description of Tilley’s activities provided the sole basis for the
ALJ’s dismissal of Dr. Ragland’s opinion. The decision stated that Tilley “was able
to hang wall paper in 1997, work at Wal-Mart in 1999 and as a census taker in 2000;
and care for her husband who was ill in 2003.” Admin. R. at 15. Notably, Tilley’s
medical records disclosed these activities, as each resulted in a visit to the doctor’s
office. Following Tilley’s activity of hanging wallpaper, Dr. Hurst treated her for
persistent, debilitating fibromyalgia pain in her right arm, right leg, and neck and
adjusted her medication in an attempt to find an effective treatment. Similarly, Dr.
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Ragland’s medical notes indicate that Tilley’s ailments forced her to resign from her
short-lived employment at the Walmart deli in 1999. Tilley returned to Dr. Ragland
after her brief stint as a census taker and was administered trigger point injections for
shoulder pain and numbness in her fingers on her right hand. And after the stress of
caring for her ailing husband in 2003 left Tilley feeling tired with pain in her neck and
shoulders, Dr. Ragland increased her prescribed dosage of Flexeril. This history,
when viewed in its full context, supports Dr. Ragland’s conclusion that Tilley was
unable to perform light work, and her unsuccessful attempts to engage in gainful
employment do not discredit his opinion.
Tilley’s ability to engage in some life activities, despite the pain it caused her,
does not mean she retained the ability to work as of the date last insured. See
Forehand v. Barnhart, 364 F.3d 984, 988 (8th Cir. 2004) (“[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.” (quoting Brosnahan v. Barnhart, 336 F.3d 671, 677
(8th Cir. 2003))). The ALJ’s decision did not address the difficult diagnoses of
fibromyalgia and degenerative spine changes, nor did it acknowledge Tilley’s physical
limitations. Fibromyalgia is an elusive diagnosis; “[i]ts cause or causes are unknown,
there’s 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). Tilley has been
diagnosed with fibromyalgia repeatedly, and her complaints correspond directly with
the disorder’s characteristics: “chronic widespread aching and stiffness, involving
particularly the neck, shoulders, back, and hips, which is aggravated by the use of the
affected muscles.” Stedman’s Medical Dictionary 725 (28th ed. 2006). Her limited
ability to complete light housework and short errands does not mean 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).
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We conclude that the treating physician’s opinion was improperly discredited
and that the finding that Tilley can perform her past work as a food service worker is
not supported by substantial evidence on the record as a whole. We thus vacate the
judgment and remand to the district court with instructions to remand the case to the
Social Security Administration for further consideration consistent with this opinion.
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