* On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of

Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Ms. Barnhart is substituted fo r Kenneth S. Apfel as the appellee in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 19 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

PATRISHA L. MOORE,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, * Commissioner of Social Security Administration,

Defendant-Appellee. No. 03-3253 (D.C. No. 00-CV-4169-JPO)

(D. Kan.)

ORDER AND JUDGMENT **

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff-appellant, Patrisha L. Moore, appeals a d istrict court order affirming the Commissioner’s determination she is n ot entitled to Social Security benefits for the period from November 30, 1994 thro ugh March 23, 1998. We reverse and remand for further proceedings. Plaintiff filed for Social Security Disability and Supplemental Security Income benefits, with an amended alleged onset date of November 30, 1994. The underlying basis for her disability claim was an automobile accident on July 12, 1994, which resulted in severe problems wi th her back and neck. She continued working part-time as a home care psychiatric aide until she reinjured herself on November 21, 1994; the parties agree that plaintiff has not worked since November 30. After plaintiff’s benefits applications were deniedinitially and on reconsideration, she was granted a hearing in 1996 before Administrative Law Judge (ALJ) Bono. ALJ Bono’s 1996 decision denying benefits was affirmed by the Appeals Council on March 23, 1998. In April of 1998, plaintiff filed new applications for benefits, alleging a March 24, 199 8 onset date. These second1 The exact basis for this award is unclear from the record. Thus we do not

know whether plaintiff was awarded benefits based o n physical or mental impairments, or a combination of both. -3- applications resulted in a favorable determination in April of 1999. Aplt. App., Vol. II at 652. 1 Meanwhile, in May of 1998, plaintiff filed her comp laint in district court seeking review of the Commissioner’s decision denyi ng her first claims for benefits. In December, the Commissioner moved to r emand the matter to the agency for further proceedings because ALJ Bono hadnot properly evaluated plaintiff’s alleged mental impairment, nor had he c ompleted a Psychological Review Technique Form in accordance with 20 C.F.R. § 404.1520a(d) (Aplt. App., Vol. II at 468-72). The district court granted the motion, and the Appeals Council subsequently remanded the case for a new ALJ hearing. Id.
at 474-78. A supplemental hearing was held in June of 2000 bef ore ALJ Reed, who concluded plaintiff was not disabled prior to March24, 1998. The Appeals Council affirmed, and the district court upheld that determination.

Standard of Review Our standard of review is well established: We review the agency’s decision to determine whethe r the factual findings are supported by substantial evidence in the record and-4-

whether the correct legal standards were applied. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. However, [a] decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of ev idence supporting it. The agency’s failure to apply correct legal standar ds, or show us it has done so, is also grounds for reversal. Finally , because our review is based on the record taken as a whole, we will me ticulously examine the record in order to determine if the evi dence supporting the agency’s decision is substantial, taking into a ccount whatever in the record fairly detracts from its weight. Howeve r, [w]e may neither reweigh the evidence nor substitute our dis cretion for that of the [Commissioner]. Hamlin v. Barnhart , 365 F.3d 1208, 1214 (10th Cir. 2004) (quotations and citations omitted).

Medical Evidence The background facts are as follows. The day afterthe July 1994 car accident, plaintiff was treated at the St. Francis Hospital emergency room for pain and assessed with a hip contusion. Aplt. App., Vol . I at 133. She was next treated by Dr. Randall McAllister on August 20, 199 4, for continued complaints of neck pain, assessed as a cervical spasm. Id. at 129. He prescribed a soft cervical collar and physical therapy. Id. Three days later, plaintiff was placed on light work duty because of decreased cervical range of motion, headaches, a very guarded gait pattern, id. at 124, 127, increased lumbar lordosis, and point tenderness in the “right upper trapezius and bilate ral scalenes and suboccipital space.” Id. at 123. He rated her pain “as a 7 on a visual analogue slide,” id. ,-5-

and concluded that “[o]bjective findings concur with whiplash-type injuries.” Id. at 124. When plaintiff next saw Dr. McAllister ag ain on October 16, he noted her continued complaints of persistent neck spasms, hip pain, left hand tingling with diminished grip strength on the left side. Id. at 118. Plaintiff moved her head, neck, and trunk as a unit. Id. She reported she could not look down to read
a newspaper. Id. X-rays of the hip were unremarkable, but the cerv ical spine showed a loss of lordosis. Id. From October of 1994 through March of 1995, plainti ff was treated by Dr. David Wilson. On October 26, 1994, plaintiff r eported pain in her neck that was “constant in nature which she describe[d] as ti ngling, numb, and terrifying,” id. at 146, with symptoms including “headaches, nausea, weakness, depression, vomiting, numbness, irritability, color changes, co ldness/warmth, concentration deficits, bladder problems, bowel dysfunction, diff iculty walking, and balance disturbances.” Id. Her pain was exacerbated by standing, walking, be nding, lifting, and overhead reaching, as well as tension, weather changes, and lack of sleep. Id. Based on his physical examination, which includeda notation of cervical range of motion at “50% of normal in all p lanes with discomfort with all movement,” id. at 147, Dr. Wilson assessed “[c]hronic cervical sc apular thoracic and low back discomfort . . . most likely musculoskeletal in nature.” Id. at 148.-6-

He continued plaintiff “on light duty with no pulli ng, pushing or lifting over 25 lbs.” Id. At her November 30 examination following the reinju ry to her neck, Dr. Wilson assessed chronic pain syndrome “with cervical strain/myofascial pain syndrome in the cervical scapular thoracic and low back region,” noting that work was aggravating her symptomology. Id. at 142. Dr. Wilson also noted “trigger points in the upper trap bilaterally, rhomboids bil aterally as well as quadratus lumborum bilaterally.” Id. He excused her from work for three weeks. Id. The work absences were subsequently extended, and she d id not return to work again. Because plaintiff did not improve, Dr. Wilson beganadministering a series of trigger-point injections beginning in February of 1995. Id. at 139. Although helpful initially for about ten days, id. at 138, the injections soon ceased to produce a significant change in her symptomology. Id. at 135. In March he found plaintiff had “significant trigger points in the right and left scalenes, right and left upper trap, right upper rhomboid, lower rh omboid, brachialis on the right, as well as bilateral quadratus lumborum and gluteus maximus.” Id. Dr. Wilson believed that at that point he had nothing further to offer her and suggested she consider a chronic pain program, noting that she wa s “not ready to return to her previous work level.” Id.-7-

In April of 1995 plaintiff was evaluated by the Kan sas Rehabilitation Hospital for its pain management program under whic h patients were expected to attend sessions eight hours a day for a minimum of three weeks at a minimum cost of $6900. Id. at 245, 249. In completing the program evaluationform, plaintiff listed her pain as both constant and unbe arable, worsened by weather changes, nearly all physical activity, concentratio n, sleep loss, tension, and anxiety. Id. at 237. Her pain was “slightly less” after long hours of bed rest, dulled somewhat by heat and ice, and temporarily so othed by hot baths. She listed being “depress[ed] [be]cause I can’t join ac tivities I use[d] to share [with] my friends,” making her irritable and short-tempered, id. at 242, and stated she was “unable to concentrate to do any work.” Id. at 243. Plaintiff did not pursue this program, however, apparently because of the co st. During May of 1995, plaintiff was treated at the Ga ge Chiropractic Clinic, reporting headaches, pain in her shoulders, back, hips, knees and neck. Id. at 153. Her subjective listings of pain for headaches, neck , hip and pelvic areas were rated as “substantial” or “severe.” Id. at 176. Objective notations of spinal motion rated her “poor” for neck and back motion. Id. at 177. In addition to multiple and constant pains, she also reported numb ness, tingling, weakness, and dizziness. Id. She further indicated that therapies she had trie d had included-8-

ice, heat, stretching, exercise, massage, and linim ents, in addition to pain medication. Id. Plaintiff first saw Dr. Sharon McKinney on May 31, 1995. Plaintiff reported that she could not do much, that she got h eadaches if she bent over, and that bending her neck produced migraines, caused he r eyes to get fuzzy and hurt her back. Id. at 172. Her hips hurt if she walked more than twe nty minutes. Plaintiff mentioned her referral to the pain manage ment program, but stated that there was “not enough insurance money left to cover this.” Id. On examination, Dr. McKinney noted that plaintiff had all eighteen classic trigger points for fibromyalgia, which Dr. McKinney concluded had resu lted from the July 1994 motor vehicle accident. Id. at 169. Dr. McKinney recommended a “fibromyalgia management sort of program,” instead of one for chr onic pain, along with stretching, extensive heat, and continued use of medications. Id. at 168-69. Plaintiff returned to Dr. McKinney in June with worse headaches. Id. at 171. Physical findings showed little change. Id. In July, Dr. McKinney noted plaintiff’s neck was still mildly limited and numer ous trigger points were still present. Id. at 170. She advised plaintiff to use heat more ag gressively and to continue with exercises. Id. In August of 1995, Dr. McKinney again noted all eig hteen classic trigger points for fibromyalgia. Id. at 167. Plaintiff reported general all over aching ,-9-

earaches, and headaches. Id. Dr. McKinney stated that the only type of activity plaintiff could do at this point was “very light se dentary non-repetitive non-stressful activity for 1 to 2 hours at the most ” and that plaintiff was “substantially limited in employment for at least 90 days.” Id. At her next visit (date unclear), plaintiff’s trigger points were “st ill ‘hot.’” Dr. McKinney noted that plaintiff was becoming deconditioned, a proble m “common with fibromyalgia.” Id. at 166. On October 17, Dr. McKinney noted plainti ff still had trigger points in the “neck, shoulder girdle muscle s and pelvic girdle muscles.” Id. at 164. Plaintiff reported being forgetful and “n ot always on track,” not sleeping well, able to do a few dishes and a little laundry, but requiring frequent rest breaks and having more pain. Id. In an October 23 letter recapping plaintiff’s medic al situation, Dr. McKinney stated that although fibromyalgia is n ot life threatening, it “can make one’s life miserable.” Id. at 165. She noted that the disorder generally requires medications and is “notorious for remissions and exacerbations.” Id. In November, plaintiff reported increased pain with the wintery weather. Id. at 162. Plaintiff also stated she had tried to geta job but would get one and then become sick and unable to work. Id. In March of 1996, Dr. McKinney determined plaintiff was at maximum medical improvement. Id. at 200. By then plaintiff’s pain had “‘spread all over’”-10-

and she had all the trigger points. Because of pai n plaintiff had a mild decrease in her shoulder range of motion and hip girdles. Id. Dr. McKinney noted plaintiff was unable to “tolerate stressful situati ons . . . or to do heavy work or any repetitive work.” Id. In July of 1996, plaintiff saw Dr. Engelken, repo rting that she had not made much progress with her fibromyalgia and that stress and noise made her symptoms worse. Id. at 261. In August, plaintiff was seen by Dr. McAllister in the emergency room with increased pain in her neck and shoulders. Id . at 273. That same month Dr. McKinney completed a fibromyalgia residual func tional capacity (RFC) questionnaire indicating that while plaintiff’s pro gnosis for life was good, her prognosis for normal functioning was poor. Id. at 264-65. Dr. McKinney stated that plaintiff was not malingering, her impairments had lasted or could be expected to last at least twelve months, and that h er symptoms included multiple tender points, nonrestorative sleep, chronic fatigu e, morning stiffness, numbness and tingling, muscle weakness, subjective swelling and depression. Id. at 264-65. Pain was precipitated by weather changes, cold, fat igue, hormone changes, movement/overuse, stress and static positioning. Id. at 266. Dr. McKinney stated that plaintiff’s symptoms were severe enough to fre quently interfere with attention and concentration, and that plaintiff’s ability to deal with work stress was markedly limited. Id. at 267.-11-

In assessing plaintiff’s general RFC, Dr. McKinney stated plaintiff could walk for one to two blocks, sit continuously for th irty minutes and stand for fifteen (for a total sitting/standing/walking of le ss than two hours in an eight-hour day). Id. at 267-68. Plaintiff would need to be able to wal k about five minutes every forty-five minutes, to shift positions at wil l and take frequent five-to-ten minute unscheduled breaks during an eight-hour work day. Id. at 268. Dr. McKinney further stated that plaintiff could oc casionally lift and carry less than ten pounds, could bend only two percent of the time, could not twist and was significantly restricted in repetitive reaching, handling and fingering. Id. at 269. Plaintiff would likely miss work more than three ti mes a month due to her impairment or need for treatment. Id. at 270. Plaintiff visited the emergency room on October 7, 1996, with complaints of pain to her neck, back, knees, and arms. She sh owed multiple tender areas along her lower cervical spine. Id. at 335. On October 28, 1996, Dr. McKinney reported that plaintiff was doing her exercises andtaking hot baths along with her medications. The physical examination indicated pl aintiff had all eighteen trigger points, although it was “somewhat difficult to asse ss [plaintiff’s] function otherwise as she is not always consistent in the exam.” Id. at 331. Dr. McKinney further reported that plaintiff was “having great d ifficulty dealing with [the fibromyalgia] and is quite limited in her ability to function because of it.” Id.-12-

There is no suggestion that plaintiff was imagining or exaggerating her symptoms. In November of 1996, laboratory tests were ordered to rule out other possible medical problems such as lupus and rheumatoid arthritis. Id. at 338-41. Dr. McKinney further noted that plaintiff’s fibromy algia was not a curable disorder. Aplt. App., Vol. II at 480. In December of 1996, plaintiff complained of muscle twitching, pain and stiffness in her knees, and depression (she noted s he did not want antidepressant medication and would go to a support group instead) . Trigger points were still present, and her range of motion was still functional. Id. at 543. At some point, Dr. McKinney signed a form Kansas Certificate of Di sability stating that plaintiff was unable to perform substantial gainful activity for the entire year of 1996 based on her disability due to “severe fibromyalgia ,” accompanied by “fatigue[,] muscle spasms[,] depression[,] and migraines.” Id. at 546. In July of 1997, plaintiff reported new problems, i ncluding hand pain and more numbness and tingling in her right arm, and a general decrease in activity. Id. at 540. Also in July and August of 1997, plaintif f was evaluated for cervical and shoulder problems. She received exercises to perform. Id. at 498-514. With a primary diagnosis of cervical pain, id. at 500, she was experiencing throbbing, pounding headaches, id. , pulling in her neck, id. , pain with cervical flexion and extension, id. at 501, and moderate pain response with palpitation, id. Her pain-13-

was better with water, heat, medication, and massag e, but worse with stress and bending her head. Id. at 503. In September of 1997, plaintiff reported problems w ith muscle spasms, mainly on her left side with some numbness and tingling. Id. at 539. Dr. McKinney noted plaintiff was very tender aroundher post hip girdle muscles and exhibited poor hip extension. Id. In that same month, Dr. McKinney’s treatment notes reflect that plaintiff’s knees feltlike rubber sometimes and her right hand tingled. Id. at 538. Plaintiff reported doing limited househol d chores and taking baths three times a day. Id. Trigger points were still present. Id. In April of 1998, plaintiff again saw Dr. Engelken, reporting that she was experiencing “occasional chest pain that is fairly sharp,” which she associated with activity, and which radiated down her left arm , causing some numbness. Id. at 517. Dr. Engelken thought plaintiff’s chest pa in was likely anxiety related, but ordered a treadmill test to rule out underlying cardiac disease. Id. at 516-17. In September of 1998, Dr. McKinney completed a medi cal statement form listing a diagnosis of “significant fibromyalgia [and] depression” associated with decreased sleep, which prevented gainful employment , was expected to last twelve months or longer, and could not be controlle d in that time frame by medication, surgery, or other treatment. Id. at 535-37. In December of 1998, Dr. McKinney recommended plaintiff take antidepressants. Id. at 534.-14-

Shortly after plaintiff filed her second applicatio ns for disability benefits in April of 1998, she was evaluated by two consultativ e doctors. In July of 1998, Dr. Charles Fantz, Ph.D., diagnosed her as having m ajor depression with, among other issues, depressed mood, lowered pleasure and interest in activities, significant weight gain, insomnia, fatigue, feeling s of worthlessness, difficulties with concentration, and continual suicide ideation. Id. at 530. He described her behavior as “consistent with her self report of sev ere depression.” Dr. Fantz believed plaintiff was “not able to work at the present time.” Id. In August of 1998, Dr. Joseph Sankoorikal also observed the possibility of depression. Id. at 533. He further noted that she complained “of alot of pain” and had sleep problems. Id. at 532-33. In addition, the record contains numer ous later records of medical visits and prescription refills.

Appellate Issues On appeal, plaintiff argues, as she did in districtcourt, that the ALJ (1) improperly weighed Dr. McKinney’s opinions, (2) improperly analyzed her fibromyalgia, (3) failed to support his psychiatric review technique form by substantial evidence (i.e., plaintiff argues that, with regard to her mental impairments, she satisfied the criteria to meet or equal Listing 12.04 of 20 C.F.R. Pt. 404, Subpart P, App. 1), and (4) failed to appl y proper legal standards when evaluating her subjective complaints of pain. Aplt . Br. at i.-15- Discussion A. Mental Impairment We first address plaintiff’s claim that her mental impairment met Listing 12.04. To establish disability based on meeting th e requirements of the listed impairment for affective disorders (§ 12.04), plaintiff must show evidence satisfying all listed requirements; to meet the “A” criteria she was required to show medically documented persistence (continuous o r intermittent) of (in plaintiff’s case) depressive syndrome. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.04(A)(1). To show depressive syndrome require s at least four of the following: anhedonia or pervasive loss of interestin nearly all activities; appetite disturbance with change in weight; sleep disturbanc e; psychomotor agitation or retardation; decreased energy; feelings of guilt orworthlessness; difficulty with concentration or thinking; thoughts of suicide; or hallucinations, delusions, or paranoid thinking, id. The ALJ determined that the evidence supported th ree of these factors: sleep disturbance, psychomotor agit ation and difficulty concentrating or thinking. Aplt. App., Vol. II at 458. In addition, plaintiff must show at least two of th e following under the “B” criteria: a limitation degree of “marked,” in the categories of restrictions of activities of daily living, difficulties in maintai ning social functioning, or difficulties in maintaining concentration, or a sho wing of repeated episodes of-16-

deterioration or decompensation in a worklike setti ng. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.04(B). The ALJ rated plaint iff’s restrictions in these areas as “slight,” as to restrictions on daily living andmaintaining social functioning, “seldom” as to concentration deficiencies, and “nev er” having episodes of deterioration or decompensation. Aplt. App., Vol. II at 462. The ALJ reviewed the evidence prior to the March 24 , 1998, date plaintiff previously was found to be disabled and determined that plaintiff’s limitations due to depression before March of 1998 were less th an the moderate restrictions the record showed after June of 1998. Contrary to plaintiff’s assertion, the ALJ did not rely on Dr. Fantz’s report in support of a conclusion that “[p]laintiff’s depression initially manifested itself on March 23, 1998.” Aplt. Br. at 38. Rather, the ALJ acknowledged that in June of 1998 D r. Fantz diagnosed plaintiff with major depression and that the evidence reflect ed that plaintiff “currently has a mental impairment that could reasonably be expect ed to produce the alleged work-related limitations.” Aplt. App., Vol. II at 450. The bottom line, however, was that there were no “clinical signs or laboratory findings of any significant mental impairment that could reasonably be expected to produce disabling symptoms prior to March 24, 1998.” Id. (emphasis added). Plaintiff’s references to other statements she made prior to March 24, 199 8, likewise do not establish a significant mental impairment of disabling proportions. See Aplt. Br. at 39-40.2 Although he twice referred to this as having first been diagnosed in 1996,

see Aplt. App., Vol. II at 450-51, plaintiff was in fact so diagnosed by Dr. McKinney in May of 1995. Aplt. App., Vol. I at169. In addition, plaintiff was treated for trigger points even before that. -17- In sum, the ALJ’s determination reflects he conside red all the evidence of mental impairment even if he did not refer to each piece of it. See Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996). We hold that substantial evidence supports the ALJ’s finding that plaintiff did not have a disabling mental impairment during the period prior to March 24, 199 8. B. Remaining Arguments Plaintiff’s remaining arguments–that the ALJ failedto properly consider her symptoms of fibromyalgia, the opinions of her treating physician, and her credibility–are all related. We conclude, based onour review of the record, that because the ALJ did not accurately perceive the nature of plaintiff’s fibromyalgia, he erroneously failed to properly consider both the treating physician’s opinions and plaintiff’s statements regarding her symptoms. Critically, moreover, he did not specify what weight he did give Dr. McKinney’s opinions, further impeding our review. This was error. 1. Fibromyalgia The ALJ recognized plaintiff’s diagnosis of fibromyalgia, 2but seemed to require that it be established by a formalistic clinical or laboratory test. See, e.g. ,-18-

“laboratory testing is not consistent with an impai rment or combination of impairments . . . reasonably expected to produce se vere and intractable pain [before] . . . March 24, 1998,” Aplt. App., Vol. II at 445; “no laboratory test has been consistent with . . . impairments . . . expect ed to cause the level of disability alleged by [plaintiff],” id. at 446, “the clinical signs are not consistent with

. . . impairments . . . reasonably . . . expected to caus e the level of pain alleged by the [plaintiff].” Id. The ALJ stated that Dr. McKinney’s opinions on pl aintiff’s limitations appeared to be based “more on [plaintif f’s] subjective complaints and the diagnosis of fibromyalgia than on any clinical signs or laboratory findings,” id. at 448. In addition to being speculative inferenc es from medical reports that an ALJ may not make, see McGoffin v. Barnhart , 288 F.3d 1248, 1252 (10th Cir. 2002), these examples reflect the ALJ’s fundamental misperception of the nature of fibromyalgia. Fibromyalgia, previously called fibrositis, is “a rheumatic disease that causes inflammation of the fibrous connective tissu e components of muscles, tendons, ligaments and other tissue.” Benecke v. Barnhart , 379 F.3d 587, 589 (9th Cir. 2004). It is a chronic condition, causin g “long-term but variable levels of muscle and joint pain, stiffness and fatigue.” Brosnahan v. Barnhart , 336 F.3d 671, 672 n.1 (8th Cir. 2003). The disease is “poor ly-understood within much of the medical community [and] . . . is diagnosed enti rely on the basis of patients’3 This is not entirely accurate. In completing the f ibromyalgia RFC questionnaire in August of 1996, Dr. McKinney did l ist “subjective swelling” as one of plaintiff’s symptoms. Aplt. App., Vol. I at265. -19- reports and other symptoms.” Benecke , 379 F.3d at 590. Clinical signs and symptoms supporting a diagnosis of fibromyalgia und er the American College of Rheumatology Guidelines include “primarily wides pread pain in all four quadrants of the body and at least 11 of the 18 spe cified tender points on the body.” Green-Younger v. Barnhart , 335 F.3d 99, 107 (2d Cir. 2003); see also Brosnahan , 336 F.3d at 678 (objective medical evidence of fi bromyalgia includes consistent trigger-point findings). Fibromyalgia can be disabling. Kelley v. Callahan , 133 F.3d 583, 589 (8th Cir. 1998). As described by the Seventh Circuit: Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are enti rely subjective. There are no laboratory tests for the presence or s everity of fibromyalgia. The principal symptoms are “pain all over,” fatigue , disturbed sleep, stiffness, and–the only symptom th at discriminates between it and other diseases of a rheumatic charac ter–multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at leas t 11 of them to be diagnosed as having fibromyalgia) that when pressedfirmly cause the patient to flinch. Sarchet v. Chater , 78 F.3d 305, 306 (7th Cir. 1996) (emphasis added)

. The ALJ noted that Dr. McKinney had not listed swel ling as one of plaintiff’s symptoms. Aplt. App., Vol. II at 446. 3 But joint swelling is not a-20-

symptom of fibromyalgia, and its absence is therefo re no indication that plaintiff’s condition is not disabling. Sarchet, 78 F.3d at 306. Indeed, it is the absence of symptoms ordinarily associated with joint and muscle pain that is one of the most striking aspects of this disease: Patients with FMS [(fibromyalgia) syndrome] usuallylook healthy. Their joints appear normal, and further musculoskel etal examination indicates no objective joint swelling, although the re may be tenderness on palpation. In addition, muscle stren gth, sensory functions, and reflexes are normal despite the pati ent’s complaints of acral numbness. The most striking and unique finding in FMS is the presence of multiple tender points. Blind studies have establi shed that these tender points are both quantitatively and qualitati vely different from those observed in healthy persons and in those withother chronic pain conditions . . . . Patients with FMS not onlyhurt more, but they also hurt in many more places than other patients. Muhammad B. Yunus, Fibromyalgia syndrome: blueprint for a reliable diagnosis , Consultant, June 1996 at 1260. Rollins v. Massanari , 261 F.3d 853, 863 (9th Cir. 2001) (Ferguson, J., dissenting). In a case with strikingly similar underlying facts, the Second Circuit concluded that the ALJ either “did not actually cre dit the [treating physician’s] diagnosis of fibromyalgia or misunderstood its nature.” Green-Younger , 335 F.3d at 108. Thus the ALJ erred in effectively “requir[ ing] ‘objective’ evidence for a disease that eludes such measurement.” Id. The court further noted that “[a]s a general matter, ‘objective’ findings are not requir ed in order to find that an applicant is disabled.” Id.4 While acknowledging that plaintiff’s reason for notdoing so may have been

financial, the ALJ noted plaintiff obtained a $10,0 00 judgment from the City of Topeka because of her automobile accident in 1994. Aplt. App., Vol. II at 446 n.3. He makes no mention of whether she in fact re ceived all of those funds, nor did he note the nearly $7,000 cost of attending the Kansas Rehabilitation Hospital’s pain clinic. See Aplt. App., Vol. I at 249. This apparent inference that plaintiff had available resources with which to pur sue other avenues for pain relief is thus pure speculation.

5 Moreover, we have held (in assessing chronic fati gue syndrome (CFS)) that the cases do not suggest that “[CFS]–or any other disease–is per se excluded from coverage because it cannot be conclusively dia gnosed in a laboratory setting.” Sisco v. United States Dep’t of Health & Human Servs. , 10 F.3d 739, 744 (10th Cir. 1993). -21- Here, the ALJ mentioned the finding of trigger points beginning in November of 1994, as well as plaintiff’s treatment with trigger point injections, Aplt. App., Vol. II at 446, but seemed to attach li ttle or no significance to these findings and treatment. Instead, he noted that pla intiff had not attended a pain clinic, 4work hardening program or behavior modification program. Id. To this court it appears the ALJ did not fully understand the nature of plaintiff’s diagnosed condition. 5 consequently, the ALJ did not properly analyze Dr. McKinney’s opinions. 2. Treating Physicians’ Opinions The ALJ referred to Drs. McAllister and Wilson as treating physicians, Aplt. App., Vol. II at 447, noting that neither hadfelt that plaintiff “was totally prevented from employment.” The restrictions and o bservances of those doctors, as described by the ALJ, generally occurred prior t o plaintiff’s November 30,6 Indeed, one of the ALJ’s citations to “Dr. Wilson’s references [to] ‘light

duty’ work” included his taking her off work for three weeks beginning November 30, 1994, Aplt. App., Vol. I at 142, whichstatus was continued through the end of January of 1995. Id. at 140-41. -22- 1994, alleged onset date. 6In addition, the fact that neither Dr. Wilson nor Dr. McAllister specifically thought plaintiff was u nemployable in 1994 or 1995, does not necessarily mean she did not become so at some time prior to March of 1998. In addition, the ALJ stated that Dr. Wilson found 6 of 18 positive trigger points in November and December of 1994, but no spe cific ones in plaintiff’s thighs in January of 1995. Aplt. App., Vol. II at 446. Not mentioned by the ALJ, however, were the additional “significant trigger p oints” in the various other areas Dr. Wilson found at that same January examination, Aplt. App., Vol. I at 140, or his March 1995 finding of significant trigger point s “in the right and left scalenes, right and left upper trapezoids, right upper rhombo id, lower rhomboid, brachialis on the right as well as bilateral quadratus lumborum and gluteous medius.” Id.
at 135. In assessing Dr. McKinney’s numerous opinions and r eports, the ALJ did not expressly state whether he treated her as a tre ating physician. More importantly, however he did not relate what weight he did give her opinions. This was error. The ALJ must first determine whether a treating source’s opinion is-23-

entitled to controlling weight. Langley v. Barnhart , 373 F.3d 1116, 1119 (10th Cir. 2004). This determination, in turn, hin ges on whether the opinion is “well-supported by medically acceptable clinical an d laboratory diagnostic techniques.” Id. (quotations omitted). However, even if a treating source’s opinion is not entitled to controlling weight, it i s still entitled to deference and must be properly evaluated. See Langley , 373 F.3d at 1119 (listing factors for evaluation as outlined in 20 C.F.R. § 404.1527). T he ALJ must also supply good reasons for the weight he assigns to a treating phy sician’s opinion, and if he rejects entirely that opinion, must provide specifi c, legitimate reasons for that rejection. See Watkins v. Barnhart , 350 F.3d 1297, 1300-01 (10th Cir. 2003). These are the steps the ALJ neglected to follow in analyzing Dr. McKinney’s reports and opinions. For example, he described Dr. McKinney’s March 1996 opinions as “contradictory.” Aplt. App., Vol. II at 448. Give n that the purposes of the two reports do not appear to be the same, we disagree. In addition to noting plaintiff was unable to tolerate stressful situations or to p erform heavy or repetitive work, Dr. McKinney’s March 11 opinion also related plaint iff’s complaints of “increased pain [which plaintiff said had] ‘spread all over.’” Aplt. App., Vol. I at 200. Dr. McKinney found plaintiff had “all her trigger points” with “a mild decrease in range of motion in the shoulders and hip girdle due to her pain,” id. ,-24-

and further stated that plaintiff was at “maximum m edical” improvement. The March 24 report, however, was a Request for Medical Statement questionnaire, listing some fifty-nine specific medical conditions with a place to explain “unlisted or combination impairments.” Id. at 195-99. In completing her response, Dr. McKinney stated that plaintiff “has s ignificant fibromyalgia which prevents sig[nificant] employment [and] will last the rest of her life unless medicine comes up with a cure.” Id. at 198. Dr. McKinney reported that this was “intractable (sic) painful despite tx,” an opinion she had issued on at least one other occasion as well. See id. at 286. We fail to see any contradictions in thes e two opinions. The ALJ further acknowledged that Dr. McKinney had stated plaintiff was “not a malingerer,” but then stated that “Dr. McKin ney also admits there are inconsistencies in [plaintiff’s] performance,” whic h the ALJ found “significant when one also notes a suggestion of inconsistency o bserve[d] by Dr. Sankoorikal.” Id. at 448. But Dr. Sankoorikal, a consulting physici an, examined plaintiff only one time in August of 1998. Moreover, he did not state that he observed “inconsistencies,” but only that h e could not tell whether some of the examination results were based on pain as the l imiting factor or because plaintiff was not applying a full effort. Id. at 532. Nonetheless, he did not suggest plaintiff was malingering or exaggerating h er symptoms, either. To this-25-

extent, too, the ALJ appears to have overlooked ourrequirement that “when a treating physician’s opinion is inconsistent with o ther medical evidence, the ALJ’s task is to examine the other physicians’ repo rts to see if they outweigh the treating physician’s report, not the other way around.” Hamlin , 365 F.3d at 1215 (further quotation omitted). The ALJ also mischaracterized what Dr. McKinney rep orted, stating that “[i]n August 1995, the physician opined that the cl aimant could possibly due (sic) part-time, ‘very sedentary non-repetitive non-stres sful activity,’” Aplt. App., Vol. II at 447, when in fact Dr. McKinney’s impress ion, on physical examination, was that “[a]t this point the only kind of activity [plaintiff] can do would be very light sedentary non-repetitive non-stressful activity for 1 to 2 hours at the most .” (emphasis added). Aplt. App., Vol. I at 167. We h ave long held that the ALJ may not “pick and choose which aspects of an uncontradicted medical opinion to believe, relying on only those parts favorable to afinding of nondisability.” Hamlin , 365 F.3d at 1219. Accord, Robinson v. Barnhart , 366 F.3d 1078, 1083 (10th Cir. 2004). Finally, we have noted that the ALJ suggested numer ous procedures and “treatments” that plaintiff did not undergo ( e.g. , work hardening program, back brace, TENS unit, MRI, CT Scan, surgery, see id. at 446-47), without any corresponding determination that any of these were ever medically prescribed or-26-

would have achieved a better diagnosis or relief fr om pain. The ALJ, however, is simply “not free to substitute his own medical opin ion for that of a disability claimant’s treating doctors.” Hamlin , 365 F.3d at 1221. Because the ALJ did not follow the proper legal standards in evaluating Dr. McKinney’s opinions, his decision that plaintif f was not disabled at any time between her alleged onset date of November 30, 1994 , and the March 24, 1998, disability determination date, is not supported by substantial evidence. On remand, the ALJ should follow the analysis we set forth in Langley , 373 F.3d at 1119 and Watkins , 350 F.3d at 1300-01. 3. Plaintiff’s Pain Allegations Likewise, the ALJ did not properly consider plainti ff’s allegations of pain. Although he accepted her testimony regarding pain f rom both the 1996 and 2000 hearings, Aplt. App., Vol. II at 445, and recited the appropriate factors to consider, see Luna v. Bowen , 834 F.2d 161, 164-66 (10th Cir. 1987), he discounted her allegations of “severe and intractab le pain” because laboratory testing was “not consistent with an impairment . . . that could reasonably be expected to produce” such severe pain. Aplt. App., Vol. II at 445. But two of the “laboratory tests” he mentioned predate both her di sability onset date and the second injury that precipitated her being unable to work, id. , and one is from the period after the Secretary had found her disability began. Id. at 446. The ALJ7 The ALJ acknowledged that plaintiff “takes several prescription

anti-inflammatory, anti-pain, and muscle-relaxant m edications.” Aplt. App., Vol. II at 447. The record, however, indicates num erous and continuous prescriptions over the course of plaintiff’s treatm ent since her 1994 injuries that (continued...) -27- acknowledged, in passing, the testimony of plaintif f’s housemate corroborating her pain testimony but apparently attached no weight to it, for reasons not readily apparent. Id. at 445. As noted, the ALJ recognized that Drs. Wil son and McKinney elicited positive trigger points, and thatplaintiff underwent trigger point injections and physical injections. Id. at 446. Again, however, the ALJ focused his disbelief of plaintiff’s pain claims on the lack of “clinical signs.” Id. As we earlier noted, fibromyalgia is a condition th at is simply not amenable to such clinical determination. See, e.g., Tennant v. Apfel , 224 F.3d 869, 870 n.2 (8th Cir. 2000) (“Fibromyalgia . . . [causes] muscl e and joint pain, stiffness, and fatigue [and] . . . there are no specific diagnosti c tests for this affliction.”). On remand the ALJ must follow the proper legal standar ds for evaluation of plaintiff’s pain testimony, see SSR 96-7p, 1996 WL 374186 (July 2, 1996), and must “closely and affirmatively link[ ] [his findin gs] to substantial evidence.” Hardman v. Barnhart , 362 F.3d 676, 679 (10th Cir. 2004) (quotation omitted). In so doing, the ALJ should further evaluate the ev idence of plaintiff’s repeated attempts to seek medical relief for her pain, the n umerous medications she has taken 7and her various other attempts to alleviate the pain. See id. at 679-80.7 (...continued)

have included Tylenol #3, Flexeril, Toredol, Anapro x, Oruvail, Extra Strength Motrin, Benedryl, Lortab, Klonopin, Ultram, Norflex , Relafen, Darvocet, and Soma. See Aplt. App., Vol. I at 145, 146, 162, 164, 166, 167, 170, 200; id. at Vol. II at 316-17. This is hardly reflective of “some aches and pains” the ALJ had “no doubt” plaintiff experienced between 1994 and 1998. Id. at 449. -28- Conclusion Accordingly, for the above reasons, the judgment of the district court is REVERSED, and the matter is REMANDED with direction s to remand to the Secretary for further proceedings consistent with this order and judgment. Nancy Caplinger’s motion to withdraw as counsel for appel lee is granted.

Entered for the Court

Bobby R. Baldock Circuit Judge