1

 The Honorable Andrew W. Bogue, United States Senior District Judge for the

District of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1497

___________

SHIRLEY BOWMAN, *

*

 Plaintiff - Appellant, *

*

 vs. * Appeal from the United

* States District Court

JO ANNE B. BARNHART, * for the Eastern District

Commissioner, Social Security * of Arkansas. 

Administration, *

*

 Defendant - Appellee. *

 

__________

Submitted: September 13, 2002

 Filed: November 20, 2002 

__________

Before McMILLIAN, and MORRIS S. ARNOLD, Circuit Judges, and BOGUE,1

District Judge.

_________

BOGUE, District Judge.
2

The Honorable Henry Jones Jr., United States District Judge for the Eastern

District of Arkansas.

2

Shirley Bowman appeals from a judgment of the district court2 affirming a final

decision of the Commissioner of the Social Security Administration denying social

security disability benefits. We reverse and remand for further proceedings. 

BACKGROUND

Bowman was born in 1945, has a GED, and last worked in 1995 as an office

clerk. She alleges a disability onset date in June 1998. The medical evidence is as

follows. In June 1997, Bowman was admitted to the hospital for back pain. Hospital

notes indicate that she was being treated by Dr. Hermie Plunk. X-ray and bone scan

examinations revealed compression fractures of her thoracic spine. Dr. Plunk's office

notes from June 1997 to August 1999 have over 97 entries indicating treatment for

systemic and discoid lupus, high blood pressure, hypothroidism, chronic back pain,

anxiety, and depression. Although some of the entries are for office visits, other

entries reflect telephone calls for prescription refills, especially for pain medications

and muscle relaxants. An April 1999 spine scan showed thoracic and lumbar

scoliosis and multiple compression fractures of the thoracic spine. 

In November 1999, Bowman saw Dr. Edward Cooper, an orthopedic surgeon.

Dr. Cooper noted that Bowman was "humped over" and had pain from kyphosis

(curvature of the thoracic spine). X-ray and MRI examinations showed multiple

compression fractures of the thoracic spine with a loss of body height, kyphosis, and

low bone density (osteoporosis). Dr. Cooper noted that as long as Bowman had

osteoporosis, she would continue to have micro-compression fractures and back pain.

He explained that although Bowman had periods of relief from back pain, a minor

trauma could cause the pain to reoccur, noting she had reported pain on sneezing. Dr.

Cooper referred Bowman back to Dr. Plunk for treatment. 
3

In a December 1999 letter, Dr. Plunk stated that she had treated Bowman for

thirty years and that Bowman had constant pain and limited mobility due to systemic

and discoid lupus, osteoarthritis, and multiple compression fractures of the thoracic

spine. In addition, the doctor noted that Bowman had general anxiety and situational

depression. Dr. Plunk listed Bowman's current medications, which included Xanax,

Plaquenil, Oxycontin, and Skelaxin, noting Bowman would continue to be monitored

with blood tests, x-rays, and monthly physical evaluations. 

In May 2000, Bowman testified before an administrative law judge (ALJ).

Bowman stated she had been laid off from her job in 1995 and drew unemployment

compensation. She acknowledged that in a previous application for disability

insurance benefits, she alleged a disability onset at the time of lay-off, explaining at

that time she believed she could not work because her lupus had worsened. She

testified she could not return to her past work as an office clerk, asserting she could

not sit for prolonged periods because of pain and stiffness in her back and swelling

in her elbow, legs, and ankles. She claimed after sitting for an hour and a half, she

had to lie down, usually with a heating pad. Although she noted she did not know

how to explain her pain, Bowman stated if she did not "catch a sneeze" or coughed

"hard" something "popped." Bowman stated she no longer drove or did housework,

and spent much of her day lying down or watching television. Bowman stated that

she was taking Paxil for her depression, but it was not as effective as another antidepressant, which she had to stop because of side effects. She also stated she

probably had side effects from other medications, but because she took so many, she

could not identify them. Bowman's daughter corroborated her mother's testimony of

severely restricted daily activities. 

In response to the ALJ's hypothetical question, a vocational expert (VE)

testified that if Bowman suffered from mild to moderate pain which was treated with

medication, depression that was controlled with medication, and could sit for one to

two hours without interruption, she could return to her past work. However, the VE
4

testified that if Bowman had chronic moderate to severe pain that effected her

concentration, she would be unable to work. 

The ALJ concluded that Bowman was not disabled because she could return

to her former work as an office clerk, finding that her allegations of disabling pain

were not credible. Among other things, the ALJ noted that Bowman had stopped

working in 1995 because of a lay-off, not because of pain, and that the medical

evidence showed no significant deterioration of her condition since 1995. In

particular, the ALJ noted a 1998 entry in Dr. Plunk's office notes indicated Bowman's

lupus was controlled with medication. The ALJ also believed the evidence showed

that Bowman had a good response to conservative treatment of her spinal

compression fractures, noting she had not had surgery. The ALJ found the testimony

by her daughter unpersuasive since it was based on acceptance of Bowman's

allegations of disabling pain. After the Appeals Council denied review, Bowman

filed suit. The district court upheld the ALJ's decision. 

DISCUSSION

"We review de novo a district court decision upholding the denial of social

security benefits." Lauer v. Apfel, 245 F.3d 700, 702 (8th Cir. 2001). "We will affirm

the ALJ's findings if they are supported by substantial evidence on the record as a

whole." Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998). "However, the review

we undertake is more than an examination of the record for the existence of

substantial evidence in support of the Commissioner's decision[;] we also take into

account whatever in the record fairly detracts from that decision." Id. We note that

even if a claimant is represented by counsel, "[t]he ALJ has a duty to develop the

facts fully and fairly." Id. at 1209. 

On appeal, Bowman argues that the ALJ erred in discounting her allegations

of disabling pain. We agree. In analyzing Bowman's allegations of disabling pain,
5

the ALJ was required to consider the medical evidence, her "prior work history; daily

activities; duration, frequency and intensity of pain; dosage, effectiveness and side

effects of medication; precipitating and aggravating factors; and functional

restrictions." Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998) (citing Polaski

v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). 

It is undisputed that Bowman has several impairments, such as systemic lupus,

compression fractures of the spine, kyphosis, which alone or in combination, could

cause chronic pain. As to the intensity of her pain, the ALJ found that the evidence

showed that she had only mild to moderate pain. The medical evidence does not

support the ALJ's finding. Among other things, in an attempt to alleviate Bowman's

pain, Dr. Plunk prescribed Vicodin, Skelaxin, and Oxycontin. Vicodin is a narcotic

prescribed "for the relief of moderate to moderately severe pain." Physicians' Desk

Reference (PDR) 516 ( 5th ed. 2002). Skelaxin is a muscle relaxant prescribed for

"acute, painful muscoskeletal conditions." Id. at 1304. Oxycontin is prescribed for

"the management of moderate to severe pain when a continuous, around the clock

analgesic is needed for an extended period of time." Id. at 2913. 

Nor is there evidence that the medications alleviated her pain, swelling, and

depression to the point where she could return to her previous job as an office clerk.

In finding that Bowman's lupus was controlled by medication, the ALJ relied on a

1998 entry in Dr. Plunk's notes. However, that one notation is not substantial

evidence that Bowman's systemic lupus was controlled at all times during her insured

status. Systemic lupus is "a chronic, remitting, relapsing, inflammatory, and often

febrile multisystemic disorder of connective tissue." Kelley v. Callahan, 133 F.3d

583, 585 n.1 (8th Cir. 1998) (internal quotation omitted). In other words, the

symptoms of systemic lupus, such as pain and swelling, can flare-up, subside, and

flare-up again. We also note that Bowman testified that her current anti-depressant

was not as effective as a previous one, which she stopped taking because of side

effects. 
3

In this case, we do not believe that the fact that Bowman was laid off in 1995,

"and did not quit because of her impairment[s] [is] an inconsistency so striking as to

negate [her] subjective claims of pain" concerning her disability beginning in June

1998. Cox v. Apfel, 160 F.3d 1203, 1208 (8th Cir. 1998). We also note that Bowman

explained that in a previous application she had alleged a disability onset date at the

time of the lay-off because she did not believe she could continue to work because of

swelling in her feet and legs. See id. (no inconsistency where onset of disability

coincided with lay-off). Bowman also noted that her previous job accommodated her.

6

 

The ALJ's finding that Bowman's compression fractures responded well to

conservative treatment is also unsupported. Although a 1997 hospital note indicated

Bowman had some pain relief due to physical therapy and medication, that note does

not undermine Bowman's testimony as to the pain caused by her compression

fractures. The ALJ again failed to consider the nature of the impairment. Dr. Cooper

explained that although Bowman may have periods of relief from her compression

fractures, because of her osteoporosis, any minor trauma could cause more fractures

resulting in more pain. Indeed, at the hearing, Bowman testified that she did not

know quite how to explain the cause of her pain, but knew if she did not "catch a

sneeze" or "coughed hard," something "popped" and she was in pain. Dr. Cooper also

explained that Bowman's kyphosis was a progressive condition, causing her to be

"humped over" and in pain. 

Because the ALJ failed to consider the progressive nature of Bowman's spinal

impairments and the relapsing, remitting nature of her systemic lupus and failed to

consider the combined effect of her impairments, both mental and physical, the

medical evidence does not show, as the ALJ found, that Bowman's condition had not

significantly deteriorated since she was laid off of work in 1995.3

 

The ALJ also erred in discounting Bowman's allegations of disabling pain

because she had been treated medically, not surgically, for her impairments. "No

medical report suggests that [Bowman] has not been pursuing a valid course of
7

treatment." Tate v. Apfel, 167 F.3d 1191, 1197 (8th Cir. 1999). No doctor has

recommended surgery for her conditions. To the contrary, Dr. Cooper, an orthopedic

surgeon, referred Bowman back to Dr. Plunk for medical management of her spinal

impairments. 

 

Even assuming Bowman's pain, swelling, and depression were controlled by

medication, the ALJ failed to develop the evidence as to the medications' side effects.

Although the ALJ did not believe Bowman's testimony concerning her inability to

perform ordinary daily activities and need to rest three or four hours a day, we note

that the combination of Oxycontin and an anti-depressant can result in sedation, PDR

at 2914, and Skelaxin can cause drowsiness and nervousness. Id. at 1301. Moreover,

Oxycontin is a "controlled substance with abuse liability similar to morphine." Id.

at 2912. 

Although Dr. Plunk's medical notes have numerous entries indicating office

visits or telephone calls for prescription refills, as the Commissioner notes, the entries

are somewhat cursory, as is the doctor's 1999 letter listing Bowman's impairments and

medications. In cases such as this, the ALJ was obligated to contact Dr. Plunk, who

has treated Bowman for thirty years, for "additional evidence or clarification," 20

C.F.R. § 404.1512(e), and for an assessment of how the "impairments limited

[Bowman's] ability to engage in work-related activities." Lauer, 245 F.3d at 706; see

also Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000) ("In spite of the numerous

treatment notes . . . not one of [claimant's] doctors was asked to comment on his

ability to function in the workplace."). Instead of developing the record from Dr.

Plunk, in assessing Bowman's residual functional capacity, the ALJ improperly relied

on the report of a state consultant, who did not examine Bowman. See id. We remind

the ALJ that "opinions of doctors who have not examined the claimant ordinarily do

not constitute substantial evidence on the record as a whole." Id. We also remind the

ALJ that "the testimony of a vocational expert who responds to a hypothetical based
8

on such evidence is not substantial evidence upon which to base a denial of benefits."

Id.

 Accordingly, we reverse the judgment of the district with instructions to

remand to the Commissioner for further proceedings consistent with this opinion. 

A true copy.

 Attest:

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