Muckler v. Astrue (656 F. Supp. 2d 1032, 2009)

ORDER AFFIRMING DECISION OF COMMISSIONER

KAREN E. SCHREIER, Chief Judge.

Plaintiff, Linda M. Muckier, appealed the denial of her application for social security benefits by the Social Security Administration. Docket 1. The case was referred to United States Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. Docket 19. On April 15, 2009, Magistrate Judge Duffy submitted her report and recommendation for disposition of this case to the court. Docket 20. Magistrate Judge Duffy recommends that this court affirm the Administrative Law Judge’s (ALJ’s) finding that Muckier was not disabled during the time period in question in this case: December 27 through December 31, 1990. Muckier objects to four of the proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). Docket 23. The court reviewed the matter de novo and accepts in whole the findings and recommendations of Magistrate Judge Duffy as supplemented herein.

STANDARD OF REVIEW

The decision of the ALJ must be upheld if substantial evidence in the record supports it as a whole. 42 U.S.C. § 405(g); Metz v. Shalala, 49 F.3d 374, 376 (8th Cir.1995). Substantial evidence is less than a preponderance but enough evidence that a reasonable mind might find it adequate to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Fines v. Ap-fel, 149 F.3d 893 (8th Cir.1998); Shannon v. Chater, 54 F.3d 484, 486 (8th Cir.1995). Review by this court extends beyond a limited search for the existence of evidence supporting the Commissioner’s decision to include giving consideration to evidence in the record which fairly detracts from the decision. Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir.1993); Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992); Tur-ley v. Sullivan, 939 F.2d 524, 528 (8th Cir.1991).

Under section 405(g), the court is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to reweigh the evidence or try the issues de novo. Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir.1992). Further, a reviewing court may not reverse the Commissioner’s decision “merely because substantial evidence would have supported an opposite decision.” Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993); see also Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993). The court must review the Commissioner’s decision to determine if an error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir.1992); Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir.1983). The Commissioner’s conclusions of law are only persuasive, not binding, on the reviewing court. Smith v. Sullivan, 982 F.2d at 311; Satterfield v. Mathews, 483 F.Supp. 20, 22 (E.D.Ark.1979), aff'd per curiam, 615 F.2d 1288, 1289 (8th Cir.1980). If the ALJ’s decision is supported by substantial evidence, then this court cannot reverse the decision of the ALJ even if the court would have decided it differently. Smith v. Shalala, 987 F.2d at 1374.

DISCUSSION

As a preliminary matter, the court finds that the ALJ considered all of the evidence. Each of Muckler’s objections to the report and recommendation includes an argument that the ALJ failed to consider or give proper weight to evidence in the record. The court agrees that “the ALJ must specifically demonstrate that he considered all of the evidence.” Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir.2004). But “an ALJ is not required to mention each medical report” and may focus on those reports that support his conclusion. Thornton v. Astrue, No. 08-1514, 337 Fed.Appx. 600, 602, 2009 WL 2169029, at *1 (8th Cir.2009); see Wheeler v. Apfel, 224 F.3d 891, 896 (8th Cir.2000). Further more, “[a]n ALJ’s failure to cite specific evidence does not indicate that it was not considered.” Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.2000); see also Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998) (finding it “highly unlikely that the ALJ did not consider and reject” particular statements from a physician when he had mentioned others). In the instant case, the ALJ has met his burden by demonstrating the he carefully evaluated the whole of the record.

Muckier first objects to the recommendation that the court affirm the ALJ’s finding that Muckler’s depression was not a severe impairment during the period in question. Specifically, Muckier argues that the medical expert the ALJ relied on for the psychiatric review technique failed to consider all of the relevant evidence, that the ALJ failed to properly consider the testimony of Dr. Simpson, that the ALJ did not consider the combined effect of Muckler’s pain and depression, and that the magistrate judge erred in citing Muck-ler’s failure to seek psychiatric counseling as evidence for lack of depression. When these errors are corrected, Muckier claims, the evidence indicates that her depression was a severe impairment.

The court has carefully reviewed the record and finds that substantial evidence supports the ALJ’s decision. The psychiatric review technique form filled out by Dr. Kristy Farnsworth is sufficient. The fact that evidence is not mentioned does not mean that it was not considered. Craig, 212 F.3d at 436. Although Dr. Farnsworth does not mention Dr. Gary Dickson’s opinion, there is no reason to believe that she did not consider it: Dr. Dickinson did not conclude that Muckier was clinically depressed, but suggested that she was “probably more depressed than she realizes.” (Administrative Record 282.) In his “Conclusions and Recommendations,” Dr. Dickinson proposes that Muckier undergo a chronic pain program with an emphasis on education and stress management, but he does not advise either therapy or medication for depression. (A.R. 282-83.) Similarly, Dr. Farnsworth does not mention Dr. Anderson’s opinion, but it is reasonable to believe that she considered it and discounted it because it was the work of an orthopedist and conflicted with the opinion of mental health specialists. Furthermore, the ALJ does demonstrate that he carefully evaluated the entire medical record, including Dr. Anderson’s notes. (A.R. 1009, 1012-14.)

The other three arguments also fail. While it is true that the ALJ did not mention Dr. Simpson in his opinion, the ALJ did consider and accord little weight to the evidence of depression provided by Dr. Anderson, whose records were the basis of Dr. Simpson’s opinion. (A.R. 1012.) Contrary to Muckler’s allegation, the ALJ stated that “even though an alleged impairment was determined to be non-severe, the undersigned considered the limiting effects of all the claimant’s impairments in establishing the RFC.” (A.R. 1012.) Finally, the magistrate judge was justified in considering Muckler’s failure to seek treatment as evidence that her condition was not severe. See Shannon v. Chater, 54 F.3d 484, 486 (8th Cir.1995) (“Especially in cases ... where medical evidence is conflicting, a claimant’s failure to seek treatment may buttress a particular physician’s opinion.”).

For the reasons set forth above and those in Magistrate Judge Duffy’s thorough and well-reasoned report and recommendation, the court finds that there is substantial evidence that Muckler’s depression was not a severe condition.

Muckier next argues that the magistrate judge erred in failing to find fault with the ALJ for not mentioning treating physician Dr. John David Sabow’s opinion that Muckier was disabled. The court disagrees. In fact, the ALJ did mention Dr. Sabow’s 1993 opinion in his decision (A.R. 1009), and he relied on Dr. Farnsworth’s psychiatric review technique form, which referred to Dr. Sabow’s 1997 opinion (A.R. 1290).

The court also agrees with the magistrate judge that the ALJ did not err in failing to give controlling weight to Dr. Sabow’s opinion. As was noted by both the magistrate judge and the ALJ, the 1993 opinion does not directly pertain to the period of time in question here. The 1997 opinion consists of a few words handwritten on the face of a request for information from Muckler’s attorney. (A.R. 1162.) Beside questions posed by the attorney, Dr. Sabow indicated that before December 31, 1990, Muckier was incapable of substantial gainful employment due to chronic pain syndrome. (A.R. 1162.) When the attorney asked that Dr. Sabow’s response include “a reasoned medical rationale for your opinions,” Dr. Sabow wrote, “please refer to notes.” (A.R. 1162.) The notes in the record, however, do not support Dr. Sabow’s conclusion. The last note before the time period in question was a May 13, 1987, record of normal nerve response test results. (A.R. 977.) The next note, dated March 13, 1991, also recorded normal test results. (A.R. 978.) The succeeding notes dated that year describe prescription refills and general improvement. (A.R. 978-80.)

Neither an unsupported conclusory statement nor a medical-source opinion that an applicant is disabled is the type of opinion to which controlling weight should be given. See Ellis v. Barnhart, 392 F.3d 988, 994-96 (8th Cir.2005); 20 C.F.R. § 404.1527(d)-(e). Dr. Sabow’s 1997 opinion falls under both of these categories. For the reasons set forth above and those in Magistrate Judge Duffy’s report, the court finds that substantial evidence supports the ALJ’s decision not to accord Dr. Sabow’s opinions controlling weight.

Muckler’s third objection is to Magistrate Judge Duffy’s recommendation that the court affirm the ALJ’s decision not to give controlling weight to treating physician Dr. Dale Anderson’s June 2000 opinion that Muckier was disabled during the relevant time period. Muckier argues that the magistrate judge erred by stating that the letter did not contain a time frame, by stating that the opinion was outside of Dr. Anderson’s area of expertise, and by stating that the opinion was contradicted by Dr. Anderson’s own records. The magistrate judge’s opinion does not rely on her finding that Dr. Anderson did not state a time frame, but rather addresses it as though the opinion was directed to the relevant time period, so the first argument is moot. The court agrees with Magistrate Judge Duffy on the other two issues for the reasons given in her report. Therefore, the court finds that the ALJ’s decision not to give Dr. Anderson’s opinion controlling weight is supported by substantial evidence.

Muckler’s final objection is to the magistrate judge’s recommendation that the court affirm the ALJ’s findings on Muck-ler’s credibility. She argues that the ALJ improperly failed to consider the impact of her depression on her physical pain; that because her condition was chronic and waxed and waned, reported daily activities should not be used as evidence that she was not disabled; and that the magistrate judge erroneously stated that there was no medical support for her claimed residual functional capacity. Although he found Muckler’s depression non-severe, the ALJ did properly consider it in combination with her physical pain. (A.R. 1012.) The ALJ’s consideration of Muckler’s reported daily activities near the relevant time period was also proper as part of his evaluation of the Polaski factors. See, e.g., Wagner v. Astrue, 499 F.3d 842, 852 (8th Cir.2007); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). Finally, the magistrate judge was correct in noting that “nowhere in the medical record is there support for [Muckler’s] alleged limitations.” (Report and Recommendation 72.) While Muckier cites the rejected retrospective opinions of Dr. Sabow and Dr. Anderson to the effect that she was disabled by depression, Magistrate Judge Duffy was referring to Muckler’s subjective complaints of disabling pain at the administrative hearings. For these reasons and those in the magistrate judge’s report, the court finds that substantial evidence supports the ALJ’s adverse finding on Muckler’s credibility.

After de novo review of the matter, including careful review of the administrative record and all of parties’ briefs, the court concurs with Magistrate Judge Duffy’s recommendation for the reasons stated above and those set forth in the report and recommendation. Therefore, it is hereby

ORDERED that the decision of the Commissioner is affirmed.

REPORT AND RECOMMENDATION

VERONICA L. DUFFY, United States Magistrate Judge.

INTRODUCTION

This appeal from the Social Security Administration’s denial of Linda Muekler’s application for disability benefits presents the narrow question of whether Ms. Muckier met the definition of “disabled” for the four-day period from December 27, 1990, to December 31, 1990. After a long and tortuous procedural history, Ms. Muckier maintains that the administrative record (“A.R.”) from the agency demonstrates that she is entitled to disability benefits. Defendant the Commissioner of the Social Security Administration opposes Ms. Muckler’s complaint and seeks an order of the court affirming the agency’s decision to deny benefits. The district court, the Honorable Karen E. Schreier, Chief Judge, referred this matter to this magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Ms. Muckler’s administrative record comprises some 1,300 pages of documents and transcripts detailing three separate applications for disability benefits by Ms. Muckier dating back to October 31, 1990, and asserting a disability said to have arisen on November 21,1985. Three different administrative law judges (“ALJ’s”) have held four different evidentiary hearings and issued three separate written opinions denying benefits. Ms. Muckier raises four issues with regard to the last decision made by the last ALJ to pass judgment on her case:

1. The ALJ erred in deciding that Ms. Muckler’s depression was a non-severe impairment

2. The ALJ erred in failing to even mention Dr. Sabow’s opinion as to Muckler’s ability to work

3. The ALJ erred in rejecting Dr. Anderson’s opinion that Ms. Muckier was not capable of performing work eight hours a day due to her psychological and physical conditions.

4. The ALJ erred in discrediting Ms. Muckler’s testimony.

Ms. Muckler’s first application for disability benefits was denied and the decision became final on December 27, 1990. No appeal was ever taken from that denial. Because of that, the agency’s determination that Ms. Muckier was not disabled before December 27, 1990, is conclusive, a fact that Ms. Muckier does not contest.

Ms. Muckler’s insured status for purposes of disability benefits ceased on December 31, 1990, also a fact uncontested by Ms. Muckier. Thus, although literally decades of Ms. Muckler’s medical documents fill the A.R., the court discusses only those documents shedding light on her condition in late December, 1990, unless discussion of other documents is necessary to explain or give context.

PROCEDURAL HISTORY

As stated above, Ms. Muckler’s first application for Title II disability benefits was made on October 31, 1990, and denied on December 27, 1990. No appeal was taken. Ms. Muckier made a second application benefits on October 26, 1993, which was denied on November 9, 1993. Again, no appeal was taken.

A third application for benefits was made on April 17, 1996, and was denied initially and denied again on reconsideration. Ms. Muckier requested and received a hearing before ALJ Paul Conaway on September 25, 1997. ALJ Conaway issued a -written decision after the hearing consolidating Ms. Muckler’s second and third application for benefits and finding that Ms. Muckier was not disabled for the period from December 27-31,1990. An appeal to United States District Court was filed. Thereafter, the court granted the agency’s unopposed request to remand the matter for further administrative proceedings. See Muckier v. Apfel, Civ. 99-5056-RHB, Docket Nos. 18, 19 (D.S.D. Feb. 15, 2000).

On remand, two evidentiary hearings were held before ALJ James W. Olson on August 17, 2000, and December 7, 2001. ALJ Olson issued a written decision denying benefits on February 20, 2002. The agency Appeals Council reviewed ALJ Olson’s decision and remanded the matter for further proceedings.

On remand, a fourth evidentiary hearing was held before ALJ Larry M. Donovan on April 20, 2006. ALJ Donovan issued a written decision denying disability benefits to Ms. Muckier on June 15, 2006. The Appeals Council declined jurisdiction on January 9, 2008. This appeal timely followed. Thus, the decision of ALJ Donovan is the final agency action for purposes of this appeal.

FACTS

A. Medical Evidence in the Record

Ms. Muckier injured her left wrist while lifting a patient in her job as a nurse’s aid in November, 1985. Thereafter, she developed continuing symptoms and pain affecting her left upper extremity and received treatment and evaluations from various care providers as further detailed in the records discussed below.

1. Dr. J.D. Sabow, M.D.

Dr. J.D. Sabow first saw Ms. Muckier in connection with her left wrist on December 11, 1985, and continued treating her on and off through 1994. A.R. 139-144, 321-331, and 915. Initially, he diagnosed a wrist sprain and recommended a wrist splint. A.R. 139. When Ms. Muckler’s wrist pain did not abate, Dr. Sabow eventually concluded that she was suffering from reflex sympathetic dystrophy and referred her to Dr. Dale Anderson. A.R. 140.

In July, 1986, Dr. Sabow re-evaluated Ms. Muckier and diagnosed her as suffering from thoracic outlet syndrome in addition to the reflex sympathetic dystrophy. A.R. 141. In March, 1987, Dr. Sabow expressed a desire for Ms. Muckier to get an opinion from a thoracic surgeon in Denver, Colorado, regarding her status. Id.

Dr. Sabow performed nerve conduction studies on Ms. Muckier on March 5, 1986; on July 29,1986; on May 13, 1987; and on March 31, 1991. A.R. 143, 144, 321, 978. Those studies always showed normal results. Id.

In August, 1991, Ms. Muckier underwent thoracic outlet surgery, described in more detail below. Dr. Sabow followed her post-surgery to ensure that her scars healed, that there were no complications, and to monitor her medications. A.R. 979-981. By April 29, 1992, Dr. Sabow stated that he was “very impressed” with the improvement in Ms. Muckler’s pain and physical condition, describing her as better than he had seen her in years. Id. In July, 1992, he estimated that the surgery effected a 70-80% improvement with her arm pain. A.R. 981.

In July, 1992, Dr. Sabow saw Ms. Muckier regarding her complaints as to “common” migraine headaches. Id. Dr. Sabow associated these headaches with withdrawal symptoms that Ms. Muckier was likely experiencing as a result of weaning herself from pain medications. Id. On August 4, 1992, Ms. Muckier reported no improvement in her headaches and Dr. Sabow prescribed the antidepressant Zoloft, since the headaches seemed to have become worse after Ms. Muckier discontinued taking Prozac. Id.

Dr. Sabow saw Ms. Muckier on August 19, 1992, and September 21, 1992, at which time he described her as looking “better than I’ve ever seen her.” A.R. 982. At this time she had discontinued all her pain medications, which Dr. Sabow stated was “ideal” because he felt she had been “slipping back into the habits of chronic chemical dependence.” Id. Dr. Sabow recorded in the last quarter of 1992 that Ms. Muckier was exercising with a Nordic Track, more successfully with her lower body than with her upper body, but that he felt she would improve with more time. Id. Dr. Sabow saw Ms. Muckier again on May 27, 1993, and again wrote that she was “the very best I’ve seen her in years.” A.R. 982.

In September, 1993, Ms. Muckier contacted Dr. Sabow’s office by telephone, said she was depressed, and asked for a prescription for Prozac. A.R. 322. Dr. Sabow issued that prescription on the basis of the phone call alone. Id. Ms. Muckier then apparently came to Dr. Sabow’s office in person on September 28, 1993. Id.

On September 28, 1993, Ms. Muckier described to Dr. Sabow increased pain symptoms with her left arm, and now with her right arm due to overuse. Id. She indicated that she was currently being evaluated for potential retraining in some type of employment. Id. Dr. Sabow discouraged Ms. Muckier from enrolling in any further pain clinics (she had gone through two pain programs by this point, as discussed more fully below) and opined that her situation was not reversible. Id. Dr. Sabow opined that Ms. Muckier was unemployable and disabled due to chronic pain syndrome. Id. Having rendered this opinion, Ms. Muckier appears not to have seen Dr. Sabow again as there are no other treatment records from Dr. Sabow in the A.R. Aside from this September, 1993, visit, the only other subsequent record from Dr. Sabow was when he saw Ms. Muckier at her husband’s request because of her hallucinations in January, 1994 (discussed below), at which time Dr. Sabow stated that he would contact Dr. Manlove for the purpose of getting Ms. Muckier admitted to a mental hospital. A.R. 915.

2. Dr. Dale Anderson, M.D.

Dr. Dale Anderson, an orthopaedic surgeon, first saw Ms. Muckier in March, 1986, and for a period of years thereafter, primarily for her arm, which he diagnosed as reflex sympathetic dystrophy. A.R. 216, 297-302. On June 8,1987, after treating Ms. Muckier and being acquainted with her condition for some 15 months, Dr. Anderson opined that Ms. Muckier could work at the sedentary or very light exer-tional level. A.R. 218.

It was 15 months until Ms. Muckier saw Dr. Anderson again, this time on September 30, 1988. A.R. 219. In the interim, Ms. Muckier had undergone a pain management program with Dr. Dong Cho. Id. Ms. Muckier reported that she was exercising at home, riding a stationary bicycle, using a Theraband, and using arm weights. Dr. Anderson’s examination revealed no objective findings of disability, noting that she had normal range of motion, no muscle atrophy, intact color and circulation, and that her reflexes and sensibility were intact. Id. Although Ms. Muckier reported subjective complaints of pain, swelling, and weakness in her left upper extremity, Dr. Anderson characterized these complaints as “moderate in degree.” Id. Dr. Anderson opined that she was capable of doing sedentary work given her age and good range of motion. A.R. 220. Ms. Muckier saw Dr. Anderson on February 20, 1989, and again on March 24, 1989, again to similar effect as the September, 1988, visit. A.R. 221.

Ms. Muckier saw Dr. Anderson again a year later, on March 15, 1990. A.R. 222. Ms. Muckier reported that she was still doing exercises on a daily basis at home as well as riding an exercise bicycle. Id. Ms. Muckier sought additional pain medication from Dr. Anderson, but he instead prescribed a cervical traction kit for her to use 15 minutes a day. Id.

Ms. Muckier next saw Dr. Anderson on August 24, 1990, and for the first time complained to him of “depression and lack of energy.” Id. Dr. Anderson’s examination of Ms. Muckler’s left upper extremity was entirely normal objectively. Id. Dr. Anderson recommended that Ms. Muckier resume her exercises, which she had recently halted, as an antidote to her depression. A.R. 223. He also recommended that she see Dr. Renka again regarding her depression. Id. However, there are no records in the A.R. from Dr. Renka following this August, 1990, referral by Dr. Anderson, so apparently Ms. Muckier did not follow up on Dr. Anderson’s recommendation that she see Dr. Renka.

Ms. Muckier saw Dr. Anderson next on October 11,1990. A.R. 223. She reported to him at that time that she had experienced improvements in her overall outlook and emotional status. Id. She told Dr. Anderson that she had obtained a mountain bike and was riding it on a regular basis. Id. She also reported that she was sleeping better and had “a better outlook on life.” Id. She indicated that she still experienced intermittent numbness and tingling in her left upper extremity, especially when laying on her left side or sleeping with her arm above her head. Id. She indicated that these symptoms resided rapidly if she changed the position of her arm or rubbed the arm. Id. Dr. Anderson opined that she could return to a light duty job. Id.

Dr. Anderson filled some prescriptions for Ms. Muckier in December, 1990, and January and February, 1991, for Darvocet, Elavil, and Dolobid, but did not see her on these occasions. A.R. 308. However, in March, 1991, he declined to prescribe any more narcotics for her, noting that she had misused them in the past. Id. Dr. Anderson again recommended that Ms. Muckier see Dr. Renka for her emotional complaints, a recommendation that, again, appears not to have been followed by Ms. Muckier. Id.

In June, 2000, nine years after Dr. Anderson’s last office visit with Ms. Muckier, Ms. Muckler’s lawyer wrote to Dr. Anderson and asked him to review select documents and render an opinion as to whether Ms. Muckier was capable of full-time employment in December, 1990, and to explain his opinion with reference to documents. A.R. 1159. With the letter, Ms. Muckler’s lawyer provided Dr. Anderson the following documents for him to review in formulating his opinion: (1) Dr. Anderson’s treatment notes for Ms. Muckier; (2) Ms. Muckler’s November 12, 1990, personal pain questionnaire; (3) a May 31, 2000, letter from Dr. Ray Strand; (4) and pages 2-15 of Ms. Muckler’s opening brief in the appeal to district court in 1999. A.R. 1159.

After reviewing these documents, Dr. Anderson wrote a letter dated June 22, 2000, in which he indicated that he had reviewed Dr. Strand’s letter and the brief. A.R. 1160. Notably, Dr. Anderson’s letter did not indicate that he had reviewed his own treatment records. Id. Dr. Anderson opined that Ms. Muckier was not capable of full-time work, although Dr. Anderson did not state a time frame during which he believed Ms. Muckier was unable to work. Id. Furthermore, Dr. Anderson opined that Ms. Muckler’s psychological impairment was greater than her physical impairment, and stated as the reason for this opinion was that none of the treatments or exercises prescribed for Ms. Muckier by her variety of care givers seemed to improve her symptoms. Id.

3. Dr. Richard Renka

Dr. Anderson referred Ms. Muckier to Dr. Richard Renka in 1986 for a psychiatric evaluation. A.R. 278. Dr. Renka saw Ms. Muckier for that evaluation on October 15, 1986. A.R. 278-280. At that time, Dr. Renka recorded that Ms. Muckier “acknowledges depressed feelings. She says she cries a lot lately. She says the pain makes her cry.” A.R. 278. Dr. Renka concluded that Ms. Muckier was not suffering from any psychiatric disorder. A.R. 279. He did note that it was extremely interesting that Ms. Muckler’s sister-in-law had suffered a similar injury and progress about seven months prior to Ms. Muckler’s injury. Id. He recommended that Ms. Muckier undergo psychological testing and stated that he had scheduled Ms. MucMer to return to his office to undergo the Minnesota Multiphasic Personality Inventory (MMPI). A.R. 280. However, there is no other record in the A.R. concerning Dr. Renka’s evaluation or treatment of Ms. Muckier, including no record of his administering the MMPI.

4. Dr. Dong Cho, M.D.

On July 21, 1987, Dr. Cho evaluated Ms. Muckier and conducted an EMG study on a referral from Dr. Anderson and Dr. Phil DeGreef. A.R. 145. Dr. Cho diagnosed Ms. Muckier with a myofascial syndrome affecting her “right” upper extremity, [sic] A.R. 147. He also stated that she may have borderline carpal tunnel syndrome in her left side. Id. Based on normal nerve conduction studies and a negative “F-wave” study, Dr. Cho did not recommend thoracic outlet surgery for Ms. Muckier. Id. Instead, he recommended an intensive, outpatient pain management program. Id.

Ms. Muckier enrolled in the program and Dr. Cho re-evaluated her after three days. A.R. 149. Ms. Muckier was quite positive about the program and its effects on her and she agreed to continue the program for another two weeks. Id.

On July 30, 1987, Dr. Cho again saw Ms. Muckier. A.R. 150. At this time, Ms. Muckier was undergoing several hours of physical therapy per day and showing very positive results. Id. She was “more cheerful and positive” about her condition on this visit. Id. The physical therapist who worked with Ms. Muckier reported good results from her therapy. Id. Dr. Cho recommended another two weeks of the program. Id.

On August 7, 1987, Ms. Muckier visited Dr. Cho again. A.R. 151. She had experienced an exacerbation of her pain, but had persisted with her physical exercises. Id. Dr. Cho explained that she would experience such episodes of exacerbation occasionally, and that it was important to maintain her exercise program as the best way to cope with the pain. Id.

On August 13, 1987, Ms. Muckier reported exacerbation with her pain, but this time she declined to participate in the physical therapy for a 24-hour period. A.R. 152. Dr. Cho again encouraged her to go back to the exercise program the next day and do as much as possible. Id. Ms. Muckier agreed to do so, stating that she believed her pain would reduce in the near future. Id.

On August 17, 1987, Dr. Cho reported Ms. Muekler’s increased pain over the last 10 days. A.R. 153. Dr. Cho prescribed a muscle relaxer, Norflex, and asked that she receive a psychological evaluation from Dr. Gary Dickinson. Id.

Dr. Cho saw Ms. Muckier again on August 19, 1987, upon the completion of her physical therapy program and following her evaluation by Dr. Dickinson. A.R. 154. Dr. Cho recommended that she continue her physical therapy exercises at home and gave her a one-month prescription for Norflex. Id. Ms. Muckier reported feeling better. Id.

On November 2, 1987, Ms. Muckier saw Dr. Cho for a follow up visit. A.R. 155. She reported that she had been attending outpatient physical therapy twice weekly in her hometown with good follow up. Id. She reported “feeling a lot better” and “doing more exercise.” Id. Although Ms. Muckier reported occasional exacerbations of her pain, Dr. Cho recorded that she had shown faster recovery from such exacerbation than before. Id. Dr. Cho’s examination showed significant improvement in Ms. Muckler’s muscle strength and endurance in her upper extremities. Id. Dr. Cho expected that Ms. Muckier would continue to show improvement in her condition and recommended that she continue her physical therapy. Id.

The final record from Dr. Cho is dated March 15, 1988, when he saw Ms. Muckier again. A.R. 157. At that point, Ms. Muckler’s condition had deteriorated due to a prolonged exacerbation of her pain. Id. Dr. Cho expressed frustration that Ms. Muckier was 400 miles away and not subject to his closer supervision. Id. An x-ray taken the previous month showed “loss of cervical lordotic curvature due to muscle spasm.” Id. Ms. Muckier also expressed frustration and depression over her increased pain. Id. Dr. Cho referred Ms. Muckier to a pain program at Black Hills Rehabilitation Hospital, approximately 60 miles from Ms. Muckler’s home, in March, 1989. See A.R. 159.

5. Dr. Gary L. Dickinson, Ph.D.

Dr. Dickinson completed a psychological assessment of Ms. Muckier on August 17, 1987, at the request of Dr. Cho for purposes of the pain management program. A.R. 281-283. Dr. Dickinson diagnosed Ms. Muckier as having “chronic pain syndrome” and recommended that she be treated by enrolling in a fairly intensive chronic pain program which includes stress management, education to help her overcome the fear that she has about her pain, and physical rehabilitation. Id.

Dr. Dickinson apparently also administered the MMPI to Ms. Muckier. A.R. 284. The evaluation indicated that Ms. Muckier suffered “a mixed pattern of symptoms in which somatic reactivity under stress may be a primary difficulty. Because of the somatic symptoms the patient is experiencing, she may present a picture of physical problems and reduced level of psychological functioning. Physical problems may be vague, may have appeared suddenly after a period of stress, and may not be traceable to actual organic changes. The patient is likely to view herself as somewhat virtuous ... This patient is likely to be somewhat passive, dependent, and demanding in her interpersonal relations. There is a possibility that she may attempt control of others through her physical symptoms.” Id. The profile of Ms. Muckier provided by the MMPI was deemed to be valid by Dr. Dickinson. Id. Dr. Dickinson felt that a comprehensive pain treatment program would be appropriate for Ms. Muckier. Id.

6. Black Hills Rehabilitation Hospital

Ms. Muckier was admitted to the Black Hills Rehabilitation Hospital on March 10, 1989, pursuant to Dr. Cho’s referral. A.R. 159, 168. At the beginning and at the conclusion of the pain program, Scott Chapman, Psy.D., performed a psychological evaluation of Ms. Muckier that included the administration of the MMPI and a clinical interview. A.R. 159, 168. Upon Ms. Muckler’s admission to the pain program, Chapman opined that Ms. Muckler’s “profile ... suggests a low energy level, a lack of vocational aggressiveness and a strong tendency to ‘take to bed.’ ” A.R. 170. Chapman also noted that she exhibited depression and tension, “both of which contribute to her chronic pain syndrome ...” Id. Chapman also wrote that Ms. Muckler’s profile “indicates that she is extremely prone to evidencing pain behaviors and possibly using these in a manipulative fashion to attain nurturance and support from others. She may also use these to avoid unwanted responsibilities and to manipulate interpersonal relationships.” Id.

At the conclusion of the program, April 28, 1989, during the clinical interview, Ms. Muckier reported to Chapman that she had benefitted significantly from the pain management program, especially the relaxation techniques, education, and exercises. A.R. 159. She reported that, as a result of the program, she no longer needed pain medications and was sleeping much better. Id. She reported significant improvement in her posture and body movement with regard to her left upper extremity. Id.

Ms. Muckler’s report of improvement was objectively verified as, at the conclusion of the pain program, she was able to walk for 30 minutes at a time without pain behaviors and perform aquasize therapy as indicated without pain behaviors. A.R. 163-166, 181. A daily activities screening conducted mid-way through this pain program indicated that Ms. Muckier took care of her own self care and did most of the household chores, including some yard work. A.R. 179. Ms. Muckier indicated that she was exercising daily, though minimally, including riding a bicycle or stationary bike. A.R. 179-180. She was also using two-pound weights and a yellow and red exercise tube to complete the exercises she had learned at Dr. Cho’s program. A.R. 180.

The MMPI test results at the conclusion of the pain program indicated that Ms. Muckier “responded to the test items in a somewhat defensive manner by attempting to deny the presence of psychological difficulties and place herself in a favorable light.” A.R. 159. As compared with the initial test results upon her admission in March, the discharge test results showed a significant decrease in Ms. Muckler’s depression and anger. A.R. 160. This was deemed significant as Ms. Muckler’s depression and anger increased her experience of pain symptoms. Id. With decrease in anger and depression, Chapman opined that Ms. Muckler’s likelihood of using her pain behaviors for interpersonal manipulation and to avoid unwanted responsibilities would also decrease. Id.

Ms. MucMer had shown good improvement in all physical and mental aspects of her condition during the pain management program. Id. Chapman recommended that Ms. Muckier return to some sedentary level of employment “as quicMy as possible” so as to avoid having Ms. Muckier regress to previous passive-aggressive levels of dysfunctional behavior whereby her pain behavior was reinforced. Id. This recommendation was echoed by Ms. Muck-ler’s physical therapists from the pain program. A.R. 166,182.

After completing the pain management program, she was seen at Black Hills Rehabilitation Hospital for outpatient physical therapy in September, 1989. A.R. 286. At that time, she was upgraded to a Ther-aband with more resistance, and the therapist recommended an “aggressive swimming exercise program.” Id. Ms. Muckier reported still experiencing pain, but being able to deal with it better. A.R. 183. Her activities included doing housework, caring for three dogs which included daily walking, and going out more, including having spent a night out dancing. A.R. 183-184. She reported fixing her hair and applying makeup everyday. A.R. 184.

7. Dr. Steven Goff, M.D.

Dr. Steven Goff evaluated Ms. Muckier for a disability rating on February 16, 1990. A.R. 287-290. He agreed that she appeared to be suffering some type of dystrophy in her left upper extremity. Id. Dr. Goff recorded that Ms. MucMer told him she was using her left arm for functional activities such as vacuuming, doing the dishes, and dressing herself, but that she could not reach over her head or perform repeated activities with the arm and had to do things in short spurts. Id. Objectively, Dr. Goff found some decrease in range of motion in the mid-dorsal area, that Ms. Muckler’s dorsum of her left hand was slightly more red than on the right, and that Ms. MucMer’s left upper extremity was about 1/3 to jé of the strength of the right. Id. He also documented muscle tightness in the occipital nuchal area on the left side and subjective lack of sensitivity in the left hand. Id. Other findings such as muscle atrophy, reflexes, temperature, and trigger points were normal. Id.

8. Dr. Rachel Basse

Dr. Rachel Basse conducted an independent multidisciplinary evaluation of Ms. Muckier on May 15, 1991. A.R. 309-316. Dr. Basse was not a treating physician, but rather an examining physician. The evaluation was undertaken as part of Ms. Muck-ler’s worker’s compensation claim to determine whether she was a good candidate for the thoracic outlet surgical release procedure. A.R. 309, 311.

Dr. Basse summarized her review of Ms. Muckler’s treatment records to date, including her diagnosis of reflex sympathetic dystrophy. A.R. 309-311. She then documented Ms. Muckler’s description of her left upper extremity symptoms as they were currently. A.R. 311.

Ms. Muckier described her daily activities to Dr. Basse as follows. She was independent in all aspects of self-care, and most aspects of household work, although she did experience difficulties with many of these activities and her husband helped out with dishes, cooking and vacuuming once a week. A.R. 312. Ms. Muckier also indicated that she is “responsible for all of the household maintenance” and that she “raises and walks her Boxer dogs on a regular basis.” A.R. 315. In the few weeks before this evaluation, Ms. Muckier told Dr. Basse that she had done some yard work and some spring cleaning. A.R. 312. She also described riding an exercise bike five to ten miles daily, which involved 15 to 45 minutes of exertion. Id. She also described doing a full range of upper extremity strengthening exercises with two-pound hand weights. Id. She stated that she walks her dogs between one-half of a mile and a full mile at a medium pace. Id. She indicated that she anticipated returning to using her mountain bike once the weather improved. Id.

Dr. Basse conducted a physical examination of Ms. Muckier and found the following. Ms. Muckier used both upper extremities freely during the conversation with Dr. Basse, with only slight guarding of the left upper extremity noted. A.R. 313. No other pain behaviors were shown. Id. Ms. Muckler’s reflexes were symmetric on both sides of her body. Id. She exhibited slight decreased sensation to light touch from her left thumb through the wrist. A.R. 314. She also showed mild weakness throughout distally greater than proximally. Id. Her strength and gait were normal. Id. Ms. Muckler’s spine showed no evidence of scoliosis, kyphosis, or scapular winging and the posture of her head and shoulders were normal. Id.

Ms. Muckier showed mild tenderness and trigger points in her left cervical and posterior shoulder area. Id. She had full cervical and left shoulder range of motion. Id. She showed some numbness and tingling on the left with various pressure points being pressed or hyperabduction, or external rotation. Id. Her muscle bulk was symmetric on both sides without evidence of gross abnormalities. Id. No asymmetric color, temperature, sweat, hair distribution, nail or nailbed changes were noted upon examining Ms. Muckler’s left and right upper extremities. Id.

Psychological testing of Ms. Muckier “suggested a very normal psychologic profile with some very mild defensiveness, depression and somatization.” A.R. 315. Dr. Basse found that Ms. Muckier exhibited “a high need for attention and affection and significant amounts of symptom mislabeling including nonpain symptoms as somatic pain.” Id. Dr. Basse stated that Ms. Muckier appeared to be “exaggerating her symptom presentation considerably with the possibility of a conscious component.” Id. Finally, Dr. Basse expressed the suspicion that Ms. Muckier might “desire to present herself as more disabled than she is to either obtain Social Security Disability insurance and/or obtain attention at home and avoid responsibilities.” Id.

Dr. Basse noted that Ms. Muckier had very recently been tapered off of long-term Coedine intake. A.R. 316. She noted that Ms. Muckier was currently taking Darvocet several times a week, a practice that Dr. Basse recommended also be discontinued. Id. In place of these pain medications, Dr. Basse recommended that Ms. Muckier be given a low dose tricyclic antidepressant on a “q.h.s” basis to assist with Ms. Muckler’s sleep and any neurogenic components of her pain. Id. Dr. Basse specifically opined that Ms. Muckier was not depressed. Id.

9. Dr. David Roos, M.D.

Dr. David Roos saw Ms. Muckier for a one-time consultation on May 15, 1991, shortly after Dr. Basse’s evaluation. A.R. 317-320. Dr. Roos found tightness in Ms. Muckler’s posterior cervical spine, normal range of motion on flexion and extension, but that her range of motion was impeded by pain when tilting the head to either side. Id. Dr. Roos documented no abnormalities in appearance, temperature, or perspiration of Ms. Muckler’s right and left upper extremities. Id. Although Ms. Muckier had normal sensation for sharpness in both upper extremities, she had a reduced sensation for dullness in her left hand. Id. She had good biceps and hand strength in both arms, but poor triceps strength on the left. Id. Her reflexes were normal and equal bilaterally. Id. Dr. Roos concurred in the diagnosis of reflex sympathetic dystrophy and recommended the thoracic outlet surgery. Id.

10. Dr. Stephen Manlove

Dr. Manlove first saw Ms. Muckier on March 9, 1992, after she began experiencing extreme anxiety and depression and had thoughts of suicide. A.R. 390. Several times during the initial interview, Ms. Muckier expressed the wish that Dr. Man-love could prescribe some drug for her. A.R. 393. Although Dr. Manlove inquired about Ms. Muckler’s use of street drugs on this date, Ms. Muckier said that she did not use them. A.R. 392. Dr. Manlove diagnosed a single episode of major depression without psychotic features. A.R. 394. He recommended that Ms. Muckier continue taking Prozac, and wean herself from Valium and Anexia. Id. Dr. Manlove saw Ms. Muckier seven times between his first visit and October, 1992. A.R. 395-401. He did not see her again until 18 months later in January, 1994. A.R. 407.

In January, 1994, Ms. Muckier was hospitalized for bizarre psychological symptoms including speaking to the devil, speaking to her long-dead grandmother, talking in rhymes, writing bizarre poetry, and walking outside barefoot in the winter. A.R. 415-416. At this time, she informed Dr. Manlove that she had been using the illegal street drug methamphetamine for the last “several years.” A.R. 417. This would clearly date back to some time prior to her initial consultation with Dr. Manlove in March, 1992, when she reported experiencing extreme anxiety. Ms. Muckier admitted that she had used methamphetamine in November, 1993, the same date she gave for the occasion when she talked to her dead grandmother. A.R. 415, 417.

Later, during her hospitalization at the South Dakota Human Services Center, Ms. Muckier indicated that her husband is a drug user and was the person who introduced her to the use of methamphetamine. A.R. 678. Ms. Muckler’s husband blamed her methamphetamine usage for the manic behavior that resulted in her hospitalization. A.R. 686. Dr. Manlove diagnosed Ms. Muckier as suffering from severe bipolar disorder, manic, without psychotic features. A.R. 407.

11. Dr. Kristy Farnsworth, Ph.D.

On April 19, 2006, Dr. Kristy Farns-worth undertook a review of all of Ms. Muckler’s mental health records from 1985 through December 31, 1990, to evaluate her mental impairment. A.R. 1279-1291. Dr. Farnsworth never met with, administered any tests, or otherwise evaluated or examined Ms. Muckier in person. Id.

Based on her review of the records alone, Dr. Farnsworth concluded that Ms. Muckier was not suffering from any medically determinable psychological impairment as of December 31, 1990. A.R. 1279. She found no functional limitations as a result of any mental condition. A.R. 1288.

B. Testimony at the Hearings

1. The First Evidentiary Hearing

The first evidentiary hearing was held before ALJ Conaway on September 25, 1997. A.R. 36. Three witnesses testified at the hearing: Ms. Muckier; her husband, Jim Muckier; and vocational expert James Hardway. The following is a summary of their testimony.

Initially, the ALJ set forth the parameters of the evidence he would receive at the hearing. A.R. 36^11. He indicated that Ms. Muckler’s first application was administratively final and constituted a barrier to seeking disability benefits for the period prior to December 27, 1990. Id. Ms. Muckier agreed that she was not attempting to reopen her first application for benefits. Id. The ALJ then set forth the fact that Ms. Muckler’s insured status terminated on December 30,1990. Id. Ms. Muckier agreed that her insured status was terminated on that day. Id. The ALJ then summarized that Ms. Muckler’s second and third claims presented the issue of whether she was disabled during a four-day window from December 27 to December 30, 1990. Id. Ms. Muckier agreed. Id. Accordingly, the ALJ noted that it would limit the introduction of testimony to the period for one year preceding the date that Ms. Muckler’s insured status terminated. Id. The ALJ noted that he would not take evidence from the years subsequent to 1990 and that he acknowledged that there had been significant psychiatric developments since that date that might have given rise to the conclusion that Ms. Muckier was currently disabled. Id. However, she was not currently insured, so that determination was irrelevant, according to the ALJ. Id.

Ms. Muckier testified as to various jobs she had held in the past and what her duties at those jobs were. A.R. 43-48. She also testified that she had a high school degree. A.R. 43.

Ms. Muckier testified that her disability began on November 20,1985, when she injured her left arm while working as a nurse’s aide. A.R. 48. Ms. Muckier asserted that the problems that developed with her left upper extremity in combination with her depression caused her to be disabled in December, 1990. A.R. 50.

She testified that she had surgery on the arm in August, 1991. A.R. 48-49. She testified that constant pain and intermittent swelling in her left upper extremity limited her use of that arm, caused migraine headaches, and sometimes caused pain so bad that it made her vomit. A.R. 51-52, 60. The headaches lasted from two to seven days and occurred approximately once a month. A.R. 60-61. When she had one of these headaches, Ms. Muckier testified that she was bedridden. A.R. 62. Ms. Muckier also testified that she suffers fatigue frequently because the pain from her arm and headaches prevents her from sleeping soundly.

She testified that her arm condition limited her functioning such that she could not perform any repetitive motions and could lift only 10 pounds. A.R. 51-52. Using both hands, Ms. Muckier testified that she could lift 20 pounds, and 10 pounds with her left hand alone, though not for very long. A.R. 53-54. Ms. Muckier testified that her ability to walk was limited because “I wasn’t really moving around very much then, maybe, I really can’t recall”; she later amended this statement to say she could walk up to a quarter of a mile at a time or three to four minutes at a time. A.R. 54, 56-57. She testified that her ability to sit was less than give minutes without changing position. Id. She testified that she could only stand for a “couple minutes” at a time because she had to constantly change positions due to the pain. A.R. 54-55. Ms. Muckier testified that in 1990 she spent most of the day lying down because it hurt to move. A.R. 55. She also testified that stress and cold weather make her pain and her left upper extremity worse. A.R. 59.

As of November, 1990, Ms. Muckier testified that she was taking prescription Tylenol III and Darvocet, both pain medications. Id. She was also taking Norflex, a muscle relaxant. Id.

Although Ms. Muckier filled out a daily activities questionnaire, she testified that she was able to complete household tasks only by working for a few minutes, then taking a break for five minutes up to a couple of hours, and then returning to the task. A.R. 62-63. Ms. Muckier testified that she was attending physical therapy in 1990 and riding either an exercise bicycle or a mountain bicycle two to three times per week for five to ten minutes at a time. A.R. 64-65. She also testified that she walked her dogs two to three times per week for five to ten minutes at a time. A.R. 65. She testified that she was able to get dressed and take care of herself during the day. A.R. 66. She testified that she needs to nap once or twice a day.

Ms. Muckier testified that the pain, headaches, fatigue, and physical limitations she described as being disabled with in 1990 continued up through the date of the hearing in 1997. A.R. 68-70. At the time of the hearing, Ms. Muckier was married to an over-the-road truck driver who was gone for extended periods of time. A.R. 42-43. She and her husband cared for a two-year-old foster child, and Ms. Muckier had sole care of the child while her husband was gone working. Id. She indicated that she picks the child up to put her in to her car seat and helps her out of the vehicle. A.R. 71. Ms. Muckier testified that she took the child to day care one to two days a week for six hours a day. A.R. 70. She also testified that family members sometimes help her care for the child. Id.

Ms. Muckier testified that she had been treated by Dr. Strand, Dr. Sable, Dr. Man-love, and Dr. Renka for her mental condition. A.R. 51. She did not otherwise describe any symptoms of, or limitations as a result of, her depression. A.R. 42-73. Ms. Muckler’s attorney did not expand on her mental condition when he exercised his opportunity to question her. Id.

Ms. Muckler’s husband, Jim Muckier, also testified. Mr. Muckier stated that he had been married to Ms. Muckier for approximately 15 years. A.R. 74. He testified that his wife does not sleep, and often sleeps sitting up in a chair. A.R. 75. He confirmed that she is fatigued during the day and takes naps. Id. Mr. Muckier testified that his wife’s condition had remained constant since 1985. Id. Mr. Muckier confirmed that his wife suffers from headaches that are sometimes severe enough to make her vomit and that she treats the headaches by lying down. A.R. 75-76. Mr. Muckier testified that his wife tries to take care of household tasks, that she must take breaks during the tasks, and that the tasks usually do not get completed. A.R. 76.

James Hardway also testified as a vocational expert. The ALJ asked Mr. Hard-way whether a person between the ages of 20 and 32, with Ms. Muckler’s past relevant work, a high school degree, and the ability to lift up to 60 pounds occasionally and to lift 30 pounds frequently, could return to any of Ms. Muckler’s past relevant work. A.R. 77-78. Mr. Hardway testified that such a person could perform Ms. Muckler’s past relevant work, with the exception of perhaps being a nurse’s aide, which sometimes entails lifting more than 60 pounds. A.R. 78.

Next, the ALJ asked Mr. Hardway to assume the same person in terms of age, education, and experience, but limited functionally to performing light work in terms of the person’s ability to sit, stand, walk, push, pull, lift, and carry. A.R. 79. The ALJ asked Mr. Hardway to assume that this hypothetical person could occasionally climb and crawl, was right-hand dominant, and was limited in her ability to lift, reach, handle, and finger with her left hand to a maximum of two pounds. Id. Mr. Hardway testified that such a person could not perform any of Ms. Muckler’s past relevant work. Id.

Assuming that same hypothetical, the ALJ next asked Mr. Hardway whether there were any jobs existing in substantial numbers in the national economy that such a person could perform. Id. Mr. Hardway indicated that there were several such jobs. A.R. 79-80. He identified the occupations of rest room attendant, guide (such as a plant guide or a sight-seeing guide), arcade attendant, and gate guard. Id.

Finally, the ALJ next asked Mr. Hard-way to assume a person with the same age, education, and past work experience as stated previously, but that the person is limited functionally to lifting only 10 pounds with her left hand, lifting 20 pounds with both hands, walking three to four minutes at a time, sitting five minutes at a time, standing two to ten minutes at a time, and laying down the majority of the day, with two to seven days a month bedridden. A.R. 81. Mr. Hardway testified that there would be no jobs such a person could do in the national economy. Id.

Setting aside any functional limitations and focusing solely on absenteeism, Mr. Hardway testified that the most an employee could miss work in a month would be an average of three days a month, before such an employee would be unemployable. A.R. 81-83. Mr. Hardway also testified that a person who could use both upper extremities, but had to take a break after each use for a few minutes up to a half of an hour would not be able to perform the jobs in the national economy that he had outlined. A.R. 83-85.

2. The Second Evidentiary Hearing

The second evidentiary hearing was held on August 17, 2000, following the district court’s remand pursuant to the agency’s unopposed motion to remand. Dr. James Simpson testified at this hearing. A.R. 1344. Dr. Simpson stated that he is a certified medical health counselor and that he had read the exhibits in the record in Ms. Muckler’s case. Id. Ms. Muckier was never a patient of Dr. Simpson’s. A.R. 1845.

Dr. Simpson described Ms. Muckler’s psychological problems in 1987, 1989, and 1991, as being depression, including feelings of worthlessness, irritability, being withdrawn and isolated, hopelessness, difficulty concentrating and attending, and problems with appetite. A.R. 1846. Dr. Simpson testified that Ms. Muckier suffered a single episode of major depression during the 1987-1989 time frame. A.R. 1348-1349. Dr. Simpson testified that Ms. Muckler’s psychological condition deteriorated significantly in 1991 and 1992, when she was hospitalized and diagnosed with manic depression with psychotic features. A.R. 1347.

Dr. Simpson testified that he could not given an opinion as to how Ms. Muckier was functioning psychologically in December 1990 to a reasonable degree of medical certainty. A.R. 1348. Presumably, this was because there were no records in the administrative record from any mental health professionals for the period between 1989 (Dr. Chapman’s evaluation) and 1991 (Dr. Basse’s evaluation). See A.R. 1345-1346.

When Ms. Muckler’s attorney pointed out that there were records subsequent to 1990 when Ms. Muckler’s treating physicians and mental health experts noted she was suffering from depression, and the attorney asked Dr. Simpson to agree that it was more than likely that she suffered from depression throughout the period from 1987 to 1991, Dr. Simpson did not agree. A.R. 1350-1351. Instead, he testified that Ms. Muckler’s records indicate that there were periods of time when her depression was in remission, for example, when she was attending pain management programs. Id. He also agreed she was suffering depressive symptoms on August, 24, 1990, and again on March 7, 1991. A.R. 1351.

Although Dr. Simpson never stated his own opinion that he believed Ms. Muckier was depressed in December, 1990, he did testify that he thought that the opinion of Ms. Muckler’s treating physician, Dr. Anderson, would have been that Ms. Muckier was chronically depressed from August, 1990, through March, 1991. A.R. 1354-1355. Dr. Simpson also agreed, though he did not state his own opinion to this effect, that Dr. Anderson’s opinion was that Ms. Muckler’s mental condition inhibited her from working in December, 1990. A.R. 1356-1357.

Ms. Muckier also provided additional testimony at the second evidentiary hearing. She testified that she attended a pain management program in 1989 and also saw a psychologist named Scott Chapman. A.R. 1359. She indicated that her depression was improved after attending the pain program. Id. She then testified that the pain in her left upper extremity got worse after this 1989 program, eventually leading her to undergo a surgery where a rib was removed, some muscle was removed, and a nerve was cut in the summer of 1991. Id. She testified that when her pain would get worse, her depression symptoms also got worse. A.R. 1360. She testified that her depression got worse in the period from 1990 to 1991. Id. Ms. Muckier testified that during this period leading up to her rib surgery, she cried a lot. A.R. 1360-1361.

Regarding her left upper extremity pain, Ms. Muckier testified that, in December, 1990, she was in constant, severe pain that she described as an “ache.” A.R. 1361— 1362. Medication helped make the pain more tolerable, but never made it go away. A.R. 1362. She reiterated her daily activities in more summary fashion than she did at the 1997 hearing, but her description was consistent with her earlier testimony on that subject. Id.

As to her ability to function in December, 1990, Ms. Muckier testified that she could sit for up to an hour, but that she would be constantly changing position during that hour. A.R. 1363. She testified that, during that hour of sitting, she would not be able to do anything with her hands. Id. She testified that she could stand for five minutes at a time and walk for a quarter of a mile at a time. Id. In this hearing, she testified that she could not lift any amount of weight without feeling discomfort. A.R. 1364. She indicated that she could not push and pull with her left hand unless the resistance was very light, but she could push and pull with her right hand. A.R. 1364-1365. Ms. Muckier testified that she could not use the fingers on her left hand in December, 1990, because they did not grasp. A.R. 1365. She also testified that she was unable to sense boiling water or cold water on her left hand. A.R. 1365-1366.

3. The Third Evidentiary Hearing

The third evidentiary hearing was held before ALJ Olson, as was the second, and took place on December 7, 2001. A.R. 1320. Dr. Stephen William Asher testified at the hearing. Id. Dr. Asher testified that the Social Security Administration had previously provided him with all of Ms. Muckler’s