The H onorable Michael J. Melloy, Chief United States District Judge for th e 1 Northern District of Iowa.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1042

___________ Patty Beckley, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Kenneth S. Apfel, Commissioner, * Social Security Administration, * * Appellee. *

___________ Submitted: May 11, 1998 Filed: August 27, 1998

___________ Before BEAM and MURPHY, Circuit Judges, and MELLOY, District Judge. 1

___________ BEAM, Circuit Judge.
Patty Be ckley appeals the district court's affirmance of the denial of Socia l Security benefits. Because the record doe s not contain substantial evidence to support the findings of the Administrative Law Judge (ALJ), we reverse and remand for further proceedings.-2-

I. BACKGROUND
Patty Beckley, who is forty-six years old, was previously employed as a cashier cler k, prep technician, machine operator, photographer, bus driver, caregiver an d printer/setter. She suffers from chronic back pain and migraine headaches with a history of depression.
In 1994, Beckley applied for benefits, alleging that she has been disabled since January 1994. Her application was denied both initially and on reconsideration. She then requested a hearing before an ALJ.
At the hearing, Beckley testified that she injured her back in a fall in 19 93. Since then, she has suffered from "insistent" back pain that "never let[s] up." The pai n radiates down both legs. She stated that she gets several weeks of relief from epidural shots in her spine and that standing again st a wall or sitting in a hot tub gives her some relief. She also stated that she cannot take her medications every day because the y make her feel "like a zombie" and add to her depression. S he stated that she can sit for twenty to thirty minutes. While sitting or shifting her weight she often experience s "sear ing" pain like she has been "poke[d] with something hot." She stated that sh e cannot bend, kneel, stoop, or lift more than fiv e pounds. She also testified that she has migraine h eadaches about once or twice a week. These headaches are totall y incapacitating and make her dizzy. She takes three Fiorinal, a headache medication, every four to six hours to combat the headaches. The medication makes her "woozy and just silly. " She also stated that she is treated in an emergency room about fou r times a year with pain relief injections for the headaches.

The medical evidence shows that Beckley has been treated for sacroiliac joint pain and lum bar disc pain. An MRI showed two mildly bulging discs in her lumba r spin e as well as hemangiomas within the vertebral bodies of her lumbar spine. Since-3-

1994, she has received physical therapy, numerous sacroiliac joint injections, an d epidu ral steroid injections at St. Bernard's Pain Management Center. She has bee n prescribed numerous medications for pain, inflammation, and depression.
Beckley has been treated for migraine headaches since 1987. At that time her headaches were acc ompanied by unexplained blackouts. These headaches have been diagnosed as vascular in origin and have been treated with painkillers.
Beckley has also been treate d for depression. In 1994, she was diagnosed with major depr ession and acute grief reaction after the breakup of a relationship. Sh e continues to be treated for depression and is p resently taking Prozac with good results.
Beckley's daily activities inc lude going to school, walking, and helping with the housework. She stated that she has returned to college to finish her degree but ha s missed numerous classes because of illness. Her roommate also testified at the hearing and corroborated Beckley's testimony. There was no vocational expert testimon y presented at the hearing.

After the hearing, the ALJ found that Beckley has severe impairments o f sacroiliac joint and lumbar disc p ain, as well as vascular headaches, but does not have an impairment or combination of impairments that s atisfied the listing of presumptively disabling impairments. The ALJ found Beckley's complaints of severe and constan t pain were no t credible. Although he found Beckley unable to perform her past work, he found she had the residual functional capaci ty to perform the full range of sedentary work. Referring to the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, (the grids), and considering her age, e ducation, and work experience, he found Beckley was not disabled. The Appeals Council affirmed the decision, as did th e district court.-4-

II. DISCUSSION

We will aff

irm the ALJ's findings if supported by substantial evidence on th e record as a whole. See Matthews v. Bowen , 879 F.2d 422, 423-24 (8th Cir. 1989)

. Substa ntial evidence is less than a preponderance, but enough that a reasonable mind migh t accept it as adequate to support a decision. See Lawrence v. Chater , 107 F.3d 674, 676 (8th Cir. 1997). The review we undertake is more than an examination of the record for the existence of substantial evidence in support of the Commissioner' s dec ision, we also take into account whatever in the record fairly detracts from tha t decision. See Cline v. Sullivan , 939 F.2d 560, 564 (8th Cir. 1991).
To establish a disability claim, the claimant bears the initial burden to show that she is unable to perform her past relevant work. See Reed v. Sullivan , 988 F.2d 812, 815 (8th Ci r. 1993). If met, the burden of proof then shifts to the Commissioner t o demonstr ate that the claimant retains the physical residual functional capacity t o perform a significa

nt number of other jobs in the national economy that are consistent with the claimant's impairments and with vocational factors such as age, education, and work experience. See id.
The ALJ found that Beckley met her initial burden, thus the dispositive question is whether th e Commissioner met his burden of establishing that Beckley retained the residual functional capacity to perform the full range of sedentary work. See Frankl v. Shalala , 47 F.3d 935, 937 (8th Cir. 199 5). If an applicant's impairments are exertional (affe cting the ability to perform physical labor), the Commissioner may carry thi s burden b y referring to the medical-vocational guidelines or "grids," which ar e fact -based generalizations about the availability of jobs for people of varying ages , educ ational backgrounds, and previous work experience, with differing degrees o f exertional impairment. See Foreman v. Callahan , 122 F.3d 24, 25 (8th Cir. 1997)

. Reli ance on the grids is "'predicated on an individual's having an impairment whic h manifests itself by limitations in meeting the strength requirements of jobs' and-5-

there fore 'may not be fully applicable where the nature of an individual's impairmen t does not result in such limitations,'" namely, mental impairments and pain. Id. (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e)). Thus, if a claimant's ability t o perform the full range of work in a particular category is limited by a nonexertiona l impairmen t, the ALJ cannot rely exclusively on the grids to determine disability bu t must consider vocational expert testimony. See Frankl , 47 F.3d at 937.

Pain is a nonexertional impairment. See Cline , 939 F.2d at 565. The AL J di scredited Beckley's testimony regarding the extent of her pain and thus relied solely
on the grids, instead of expert vocational testimony, to determine whether there wer e jobs i n the national economy that a person with Beckley's residual functional capacity could perform. When a ssessing the credibility of a claimant's subjective allegations of pain, however, the ALJ must consider the claimant' s prior work history; daily activities; duration, frequency and intensity of pain; dosage, effectiveness and side effects o f
me dication; precipitating and aggravating factors; and functional restrictions. Se e Polaski v. H eckler , 739 F.2d 1320, 1322 (8th Cir. 1984). When rejecting a claimant's
co mplaints of pain, the ALJ must make an express credibility determination, detailing
reason s for discrediting the testimony, must set forth the inconsistencies, and mus t discuss the Polaskifactors. See Cline , 939 F.2d at 564. In this case, the inconsistencies that the ALJ relied on to disbelie ve Beckley's testimony are not supported by sufficient evidence.

T he ALJ stated, "[t]here is simply no medically verifiable physical abnormality in her head, neck or lumbar spine to account for such pain" and further pointed t o Beckley's "lack of more aggressive recent medical t reatment," noting that "she has been content t o simply refill prescriptions for pain medication and occasionally get a pai n block injection." These statements are not supported by the record. Beckley' s diagnoses of bulging discs and vascular headaches are objective proof of impairments that could account for her pain. Although a claimant's allegations of disabling pain may be discredited by evidence that the claimant has received minimum medical treatment-6-

an d/or has taken only occasional pain medications, such is not the case with Beckley. See id. at 568. The record reveals Beckley's many visits to doctors and that she takes numerous prescription

medications for pain and inflammation. She has availed herself of many treatment modalities for chronic pain, incl uding a TENS unit, physical therapy, steroid injections, and nerve blocks, and has undergone several diagnostic tests , including CT scans, nerve conduction studies, electromyography, and MRI s. We do not characterize this as a lack of aggressive treatment. The ALJ also failed to consider the dosage, effectiveness, and side effects of Beckley's medications, in spite of he r testimony that the medications made her "woozy" and "silly." See Polaski , 739 F.2d at 1322.
Here, the record supports a finding that nonexertional i mpairments exist: Beckley suffers frompain that cannot be completely discounted and she is being treated fo r depression. Although neither may be severe enough to be disabling, Beckley is entitled to have a vocatio nal expert testify as to the effect of these impairments on her residual fu nctional capacity. We find the ALJ erred in discounting Beckley's subjectiv e
co mplaints and thus erred in relying solely on the grids to determine whether Beckley had the residual functional capacity to perform the full range of sedentary work.

III. CONCLUSION

For the rea sons stated above, we reverse the district court's grant of summar y judgment to the Commissioner. We remand to the district court with instructions t o
rema ndto the Social Security Administration for further proceedings at whic h vocational expert testimony must be adduced.-7-

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.