## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1717

___________ Sharon K. Cox, * * Appellant, * * Appeal from the United States
v. * District Court for the Western * District of Missouri. Kenneth S. Apfel, * Commissioner of Social Security, * * Appellee. *

___________ Submitted: September 25, 1998 Filed: November 23, 1998

___________ Before RICHARD S. ARNOLD, BEAM, and HANSEN, Circuit Judges.

___________ BEAM, Circuit Judge.

Sharo n Cox appeals the district court's order affirming an administrative la w jud ge's denial of social security disability benefits. Because the administrative la w judge (ALJ) failed to fu lly consider the ramifications of an implanted morphine pump, and failed to adequately develop the record, there is not s ubstantial evidence to support the ALJ's decision. Accordingly, we reverse and remand for further proceedings.An

intrathecal infusion pump is a small programmable pump surgicall y 1 implant ed in the patient which delivers a narcotic, in this case morphine, directly into the spinal canal. These pumps are preprogrammed for a particular dosage, but als o allow the patient to self-medicate as needed within preset parameters.
-2- I. BACKGROUND

Sh aron Cox is a fifty-two year-old woman with a high school education and a history of dep ression, back pain, and arthritis. Her past relevant work was as a legal secretary until June of 1993. In November 1985, she slipped and injured her bac k while at work. Shortly t

hereafter, she began to experience pain in her lower back and leg s and embarked upon a long search for pain relief. This search included tryin g differ ent doctors, tests, drugs, and therapies. In 1991 and 1992, Cox had thre e surgeries performed on her lower back to remove two lipoma, repair a herniate d muscle, and remove a sac of fluid. Her pain continued unabated despite the fact that her doctors could find no specific cause. In April 1993, she was eventually referred to Dr. Chaplick at the Pain Management Center of the Baptist Medical Center. Dr

. Chaplick administered a morphine epidural nerve block which proved temporaril y effect ive. Based on this success, and on the ineffectiveness of any of her pas t treatmen ts, Dr. Chaplick recommended the implantation of an intrathecal narcoti c infusion pump. The pump was surgically implanted in early May 1993, and Cox has

1 required ever increasing doses of morphine since that time.

On June 28, 1993, Cox lost her job as part of a forty-five person lay-off at the la w firm where she was working. She applied for, and received, unemploymen t insurance benefits for approximately the next six months. In order to qualify fo r unemployment benefits, Cox certified that she was able and willing to work.
In July 1993, the pump failed and Cox received epidural injections every other day until the pump was repaired in August. In October 1994, Cox began to experience-3-

pain and sw elling in her right leg and swelling in her feet. She was diagnosed with degenerative arthritis and edema, and treated with mo re pain medication, diuretics, and a sequen tial gradient pump to push the excess fluid out of her legs. Cox's entire right knee was eventually replaced in March 1995.

Cox ap plied for disability benefits in November 1993, alleging that she wa s disabled as of June 28, 1993, by the extreme pain in her lower back and legs, which is aggravated by sitting or standing for more than fifteen to twenty minutes at a time. In December 1993, Cox was examined by an orthopedic surgeon at the request of the Com missioner. Dr. Thomas-Richards recommended a psychological evaluation, and concluded that, although Cox could p hysically perform sedentary work, her reliability, productivity, and attendance would be marginal due to her dependence on morphine.

Prio r to being fitted with the morphine pump, Cox was given a psychologica l examinati on to determine her suitability for the procedure. The psychologist wh o adm inisteredthe exam, Dr. Montgomery, noted that Cox was depressed, that th e depression may exaggera

te her perception of pain, and that Cox may use her pain in a manip ulative manner. Dr. Montgomery described Cox as being in a "desperat e situ ation" attempting to work in spite of her severe pain, and a high risk for suicide if the pump did not prove effective. Cox's other physicians often noted a probabl e "psychogenic" or "psychosocial" overlay to her complaints of pain.

InMay 1994, Cox's treating physician at the time, Dr. Chaplick, reported tha t Cox showed s igns of depression. He felt that Cox was increasingly tolerant of he r medications and th at she "may overdo her medications" at times. Dr. Chaplick stated that he was not aware of Cox's concentration situation, but that she did suffer fro m
some memory loss. Nevertheless, he believed she had the mental ability to do some kind of work. He stated that he would like to see Cox reduce the am ount of medication and concl uded that "if she could learn to tolerate the pain, then she could learn t o sustain work activity."-4-

Cox was twice den ied disability benefits, and in June 1994, filed a request for a he aring before an ALJ. At the hearing, in September 1995, Cox testified that she had certifiedher ability to work in order to obtain unemployment benefits, and that sh e actively sought emplo yment during the six months following her lay-off. She does not drive because the mo rphine blurs her vision, although she also stated that she can read and wa tch television. She does not participate in any household chores that requir e standing or walking. Cox testified that she is unable to wo rk due to constant pain in her back and leg s, and swelling in both her legs which requires her to elevate the m periodically. She denied any serious mental impairments and state d that she did not feel severely depressed.

The ALJ found that Cox was not disabled. H e found that her claims of disabling pain were not credible. He also concluded that her leg pain and edema from arthriti s had been controlled. The ALJ relied primarily on the lack of a medically discernable

cause for C ox's pain, two doctor's opinions that she could work if she reduced he r medications, and the comment that she may use her pain in a manipulative fashion. The ALJ concluded that Cox could perform sedentary work, provided she had the option to sit or stand at will, and is limited to work involving no more than normal stress. Th e Appeals C ouncil declined to review the case and the district court affirmed. Co x appeals t o this court, arguing essentially that the record lacks substantial evidence t o support the ALJ's ruling, and that the ALJ failed to develop the record.

II. DISCUSSION

To determine disabi lity, the Commissioner uses the familiar five-step sequential eval uation. He determines: (1) whether the claimant is presently engaged in a "substantial gainful activity;" (2) whether the claimant has a severe impairment—on e that sig nificantly limits the claimant's physical or mental ability to perform basic work activities ; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is-5-

di sabled without regard to age, education, and work experience); (4) whether th e cl aimant has the residual functional capacity to perform his or her past relevant work; and (5) if

the claimant cannot perform the past work, the burden shifts to th e Commission er

to prove that there are other jobs in the national economy that th e claimant can per

form. See Kelley v. Callahan , 133 F.3d 583, 587-88 (8th Cir. 1998).

Our standard of review is a narrow one. We will affirm the ALJ's findings if they
are supported by substantial evidence on the record as a whole. See Matthews v

. Bowen , 879 F.2d 422, 423 (8th Cir. 1989). Substantial evidence is less than a prepondera nce, but enough that a reasonable mind might accept it as adequate t o
su pport a decision. See Lawrence v. Chater , 107 F.3d 674, 676 (8th Cir. 1997)

. Howeve r, the review we undertake is more than an examination of the record for th e exis tence of substantial evidence in support of the Commissioner's decision, we als o take into account whatever in the record fairly detracts from that decision. See Cline v. Sullivan , 939 F.2d 560, 564 (8th Cir. 1991).

Inthe last step, the Commissioner has the burden to establish that job s reali stically suited to the claimant's residual functional capabilities are available in the national econ omy. See Talbott v. Bowen , 821 F.2d 511, 514-15 (8th Cir. 1987). I n determining availability of such jobs, the claimant's impairments, together with her age, education, and previous work experience, must be considered. S ee Fenton v. Apfel , 149 F.3d 907, 910 (8th Cir. 1998). The Commissioner may produce evidence of suitabl e jobs by eliciting testimony from a vocational expert concerning availability of job s which a person w ith the claimant's particular residual functional capacity can perform. See id. This is generally accomplished by posing hypot hetical questions to a vocational expert. The questions must fairly reflect the abilities and impairments of the claimant as evidenced in the record. See Morse v. Shal ala, 32 F.3d 1228, 1230 (8th Cir. 1994).-6-

In this case, the ALJ a sked the vocational expert if there were jobs available for
a n individual limited to sedentary work, who must have the option to sit or stand, and who cannot tolerate greater than normal stress. The vocational expert responded in the affirmativ e. As discussed below, the question did not adequately account for Cox' s impairmen

ts, thus the testimony of the vocational expert cannot be used as substantial evidence that Cox is not disabled. If a hypothetical question does not include all of the claima nt's impairments, limitations, and restrictions, or is otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability. See Greene v. Sullivan , 923 F.2d 99, 101 (8th Cir. 1991). The question posed to the vocati onal expert was inadequate for two reasons. First, the ALJ impro perly discounted Cox's subjective complaints of pain. Second, because the ALJ failed t o properly develop the record, there is no way to determine whether th e question posed accurately reflected Cox's abilities and limitations.

A. Subjective Claims of Disabling Pain

In anal yzing a claimant's subjective complaints of pain, an ALJ must examine : (1) the claimant's dail y activities; (2) the duration, frequency, and intensity of the pain; (3) d osage, effectiveness, and side effects of medication; (4) precipitating an d aggr avating factors; and (5) functional restrictions. See Polaski v. Heckler , 739 F.2d 1320, 1322 (8th Cir. 1984). Other relevant fa ctors include the claimant's relevant work history and the absence of objective medical evidence to support the complaints. See id. The ALJ may discount subjective complaints of pain if inconsistencies are apparent in the evidence as a whole. See Black v. Apfel , 143 F.3d 383, 386 (8th Cir. 1998).

We quest ion whether a claimant with seven years of medical records detailin g repeated complaints of severe pain, who undergo es three back surgeries in the hopes of alleviating that

pain, and who now lives with a morphine pump implanted in her body, can be found not credible regarding her complaints of pain.-7-

In discounting Cox's allegatio ns of pain using the Polaski factors, the ALJ found that there were no objective findings to support the degree of pain alleged, and pointed out that several physicians noted that her pain was out of proportion to the objectiv e findings. This is not reflected in the record as a whole. The ALJ refers to Dr. ThomasRichards' s tatement that there are no clinical findings to correlate with Cox's level o f pain. However, Dr. Thomas-Richards examined Cox only once and e xpressly qualified the statement by noting that he had been given no medical records to review. While it is true tha t physicians have been unable to identify a specific physical cause for th e amount of pain claimed by Cox, she has been repeatedly diagnosed with chronic lo w back pain and depression which cause her to feel exaggerated levels of pain

. Depression, diagnosed by a medical professio nal, is objective medical evidence of pain to the same extent as an X-ray film. See 20 C.F.R. §§ 404.1508, 404.1528. Another objective medic al fact supporting Cox's subjective complaints of pain is the consistent diagnosis of chronic lower back pain, coupled with a long history of pain management and drug t herapy, including the implantation of the intrathecal morphine pump. It i s ob vious that physicians have determined Cox was experiencing great pain. Se e Ba kalarski v. Apfel , No. 97-1107, 1997 WL 748653 (10th Cir. Dec. 3, 1997 ) (consistent diagnosis of chronic pain syndrome can serve as an obj ective basis for pain).
The ALJ also relies on two physicians' comments that Cox may be able to engage in substantially gainful activity, and concludes that Cox is c apable of some type of work with "medication even at current levels." However, this conclusion is not supported by the record for two reasons. First, both of the physicians' comments were conditional, bas ed either on decreased morphine levels, or an increased ability to tolerate pain

. Second, Cox was no longer taking the same dosage of morphine that she was at the time of the physicians' comments. Cox’s mo rphine dosage has steadily increased ever since the pump was surgically implanted. In September, she was receiving 3.6 mg/day

. When she was evaluated by Dr. Thomas-Richards in December 1993, she was receiving 6.2 mg/day. In January 1994, the dosage was again increased-8-

to 7.6 mg/day. In July 1994, shortly after Dr. Chaplick suggested she may be able to
wo rk if she could learn to tolerate the pain, the dosage was 8.9 mg/day. Shortl y thereafter, her dosage was nearly doubled by her new physician. By the time of th e hearing, s he was receiving 25 mg/day of morphine, the point at which additiona l amounts of the drug prove ineffective. There is nothing in the record to indicate that the ALJ knew what Cox's dosage was at the hearing, or what the effects of the drug may be at that level.

The ALJ als o points out that Dr. Chaplick felt Cox should cut down on th e amount of morphine she uses. The suggestion is that if the morphine interferes with Cox's ability to work, it is due to Cox’s choice and not to any impairment. While we do not questio n a medical opinion, we point out that it seems a bit disingenuous t o surgically implant a device which injects an addictive narcotic directly into a patient’s spine, and then suggest that the patient should use less of the drug. This is especially true in regard to drugs such as morphine where the body develops a tolerance to th e drug , thus requiring greater doses to achieve the same effect. See Physicians' Des k Reference 987 (51st ed. 1997). Cox is dependent on the morphine. The addiction is caused by the nature of the dr ug prescribed. Because Cox is dependent and the doctor controls both the programming and refillingof the pump, Chaplick had as much control over the amount of morphine Cox used than Cox herself.

Th e ALJ also relies on two inconsistencies between Cox's testimony and th e record

. He first points out that Cox lost her job as part of a large lay-off and no t because of

her impairments. In some circumstances, this allows the inference that the claimant w as able to work, and therefore not disabled, at the time of her alleged onset of disability. See Black , 143 F.3d at 387. However, unlike the facts in Black, Cox' s lay-off co incided with the surgical implantation of the infusion pump, and closel y followed a period during wh ich Cox required repeated trips to the hospital for epidural injections of morphine. In this case, the fact that Cox was laid off, and did not quit-9-

because of her impairment, does not amount to an inco nsistency so striking as to negate Cox's subjective claims of pain.

The second inconsistency relied on by the ALJ to negate Cox's credibility is her acceptance of unemployment benef its for the period immediately following her lay-off. We have held that the acceptance of unemployment benefit s, which entails an assertion of the ab ility to work, is facially inconsistent with a claim of disability. See Salts v

. Sullivan , 958 F.2d 840, 84 6 n.8 (8th Cir. 1992). However, the negative impact cannot be uniform

ly or automatically applied in every case. Where, as here, there is no other evidence t o detract from the claimant's credibility, the negative inference is no t sufficie nt, of itself, to negate the claimant's credibility. See id. , see also Jernigan v

. Sullivan , 948 F.2d 1070, 1074 (8th Cir. 1991).

B. Duty to Develop the Record
Many of the inadequ acies of the ALJ's decision flow from his failure to develop the record. The admin istrative hearing is not an adversarial proceeding. See Battles v. Shalala , 36 F.3d 43, 44 (8th Cir. 1994). The ALJ has a duty to develop facts fully and fairly, and thi s duty is enhanced when the claimant is not represented by counsel. See Mitc hell v. Shalala , 25 F.3d 712, 714 (8th Cir. 1994). The record presented i s inadequate for the purpose of determining whether Cox is disabled.
We have found no circuit court disability opini on involving a claimant dependent
on morphine f

or pain control. Morphine is the drug of last resort for long term pai n management because of its addictiveness and the pati ent's eventual tolerance, requiring
ever increasi ng levels of the drug. See , e.g. , The Merck Manual 1407-15 (16th ed

. 1992). It is most often used to control pain after surgery. Because of the patient' s eventual tolerance and addiction to the drug, long term use of morphine for pain control in continuous intrathecal infusion devices is generally recommended only for terminally ill cancer patients. S ee id. , Physicians' Desk Reference at 985-87. No determination-10-

regarding disability can be made without an investigation into the impact of the patient's dependence and the side effects of increasing doses of the drug. Neither wer e addressed in the ALJ's opinion. The fact that Cox is dependent on ever-increasing doses of morphine was never acknowledged or discussed, even though there is ample evidence in the record of the increasing dosages, and of Cox's dependence on the drug. At the hea ring, the ALJ asked only one question about the side effects of Cox's medications. Cox resp onded that her vision was blurred. Although several of the medical report s indicated a relationship between the morphine and Cox's mental abilities and her ability to work, the ALJ never developed or explored this aspect of the c ase. We find no effort to fully and fairly develop the record.
The need to more fully develop the record is also shown by the absence of some medical reports. The record contains 117 pages of reports from the pain management clinic. Eleven of those reports are for visits to the clinic or emergency room between S e ptember 1993 and April 1994, to receive an additional epidural of morphine and/or to ha ve Cox's pump reprogrammed. There are no similar records for the seventee n months pri or to the hearing, despite the fact that a letter from Dr. Charapata, date d Au gust 1995, makes clear that Cox has been under the care of the Pain Institute since July 1994, and continues to require increases in her morphine dosage.

Similarly, the record contains medical reports detailing Cox's knee replacement operation in March 1995, but is devoid of any evidence concerning her recovery or the

success of post-operative physical therapy. Cox testified that she suffered from pai n and swelling in h er feet and legs. The ALJ dismissed these claims, stating that exhibit 48 demons trated that the condition had been brought under control with medication

. Exhibit 48 contains the medical repo rts detailing the diagnosis and treatment of edema, most likely caused by rheumatoid arthritis. The last entry wa s made in December 1994. While these records do show the prescription of drugs and pneumatic boots, there i s no indication that t

he symptoms were brought under control. Even if the exhibit could be interpreted as the ALJ suggests, there is no evidence of the level at which the-11-

symptoms are now "under control." The ALJ cannot rely on the absence of later records deali ng with the same subject as an indication that the medical condition has bee n resolved. In this case, the record shows that Cox's right knee was replaced three months later. Any conclusion that Cox was no longer having trouble with her legs is obviously unwarranted.
During the hearing, the ALJ asked Cox if the record was complete. Cox replied, "To my knowledge, yes." The Commissioner cites Mitchell v. Shalala , 25 F.3d 712 (8th Cir. 1994 ), for the proposition that the ALJ was entitled to rely on Cox's response. In Mitchell , theclaimant testified that he had completed the eighth grade and could read. Because there wa s nothing in the record inconsistent with that statement, the ALJ was entitled to rely on the claimant's statement and did not have a duty to develop the record further in that regard. See id. at 715. The present facts are easily distinguishable from Mi tchell

. Here, it is obvious that the record did not contain all the relevant medica l records, i ncluding the last seventeen months of records from Cox's personal physician charged with her pain management. And since the record clearly did not co ntain enough evidence to adduce the impact of Cox's morphine dependence on her ability to work , or whether Cox still suffere d from edema, the ALJ's failure to develop the record more fully is reversible error.

III. CONCLUSION
This case is close on the issue of whether we would simply reverse with instructions to award benefits. However, due to our a bundant deference to the ALJ, we feel it appropriate that the ALJ be given the opportunity to more fully develop th e record. Acc ordingly, the judgment is reversed and remanded to the district court with directions to remand it to the Commissioner fo r further proceedings consistent with this opinion.-12-

A true copy.

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