
    Patricia GILES, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
    No. C04-2061.
    United States District Court, N.D. Iowa, Eastern Division.
    April 28, 2005.
    
      Cynthia A. Rybolt, Legal Services Corp. of Iowa, Waterloo, IA, for Plaintiff.
    Lawrence D. Kudej, US Attorney’s Office, Cedar Rapids, IA, for Defendant.
   REVISED ORDER

JARVEY, United States Magistrate Judge.

This matter comes before the court pursuant to briefs on the merits of this application for disability insurance benefits. On March 11, 2005, the parties consented to the exercise of jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(C). (Docket # 12). The final decision of the Commissioner of Social Security is reversed and this matter is remanded for award of benefits.

PROCEDURAL BACKGROUND

Plaintiff Patricia Giles applied for Title II Social Security benefits and Title XVI supplemental security income benefits on October 23, 2000, alleging an inability to work since October 23, 2000, due to chronic headaches, hyperthyroidism, arthritis, and hypertension. Ms. Giles’ application was originally denied and was denied on reconsideration. A hearing before Administrative Law Judge (ALJ) John E. Sand-bothe was held on October 9, 2003. In an opinion dated March 4, 2004, the ALJ denied benefits. On July 15, 2004, the Appeals Council denied Ms. Giles’ request for review.

FACTUAL BACKGROUND

Ms. Giles’ relevant medical history is set forth below:

In the hearing before the ALJ, Ms. Giles testified that she had completed high school and one year of college. (Tr. 40). She last worked in 2001 in food service at Central School in Waterloo. (Tr. 40). Her employment there was terminated because she missed too many days of work due to her migraine headaches. (Tr. 40). Ms. Giles testified that she first started having headaches in about 1985, when she had a bad fall. (Tr. 41). She testified that she has headaches every day, severe headaches once or twice a month. (Tr. 42, 56-57). When she is experiencing a severe headache, she does nothing but lie still and go to the emergency room for a shot. (Tr. 42). The severe headaches make her nauseous and have caused her to black out. (Tr. 42). The medications Ms. Giles takes for her headaches make her drowsy, but have not helped in any manner. (Tr. 42-43, 57). After taking the medication, which she does twice a day, she . has to lie down for a couple hours. (Tr. 43). Ms. Giles testified that she her insurance would not cover the intensive treatment in Iowa City, as suggested by one of her treating doctors, and that she could not afford to pay for the treatment herself. (Tr. 45). Ms. Giles testified that she went to the emergency room for her headaches about once a month, but her insurance company started getting on her about going there and told her to go to Convenient Care or go back to Peopled Clinic instead. (Tr. 56, 57).

With respect to other physical problems, Ms. Giles testified that she has back problems, stenosis, thyroid problems, her right knee stays swollen, her left ankle is currently swollen, and her left, shoulder gives her problems as well. (Tr. 45). In terms of her ability to do things, Ms. Giles testified that her 14 year-old daughter helps out- a whole lot, and that the 14 year-old daughter helps the seven year-old daughter with her homework when Ms. Giles is having a bad migraine headache. (Tr. 46). Ms. Giles testified that she can sit for about an hour before she has to get up and move around, she can stand for about an hour at a time, she can walk for about an hour before she would have to stop, and that she has to lay down in order to get relief. (Tr. 47). The medications she takes for her back pain make her vomit and they knock her out, put her to sleep. (Tr. 48). Ms. Giles testified that she had 12 injections in her back for the pain, but it did not help. (Tr. 49r50).

Regarding her daily activities, Ms. Giles testified that her 14 year-old daughter does the housework. (Tr. 51). When she’s not having a migraine, Ms. Giles does some cooking. (Tr. 51-52). She also does the laundry, but must sit down to do it. (Tr. 52). Ms. Giles further testified that she makes sure that her children go to school every day and that she goes to their school activities if she is not having a migraine. (Tr. 55).

Ms. Giles testified that her weight is up about 40 pounds over the last three or four years. (Tr. 54). She attributed her weight gain to the medications she takes. (Tr. 54). Ms. Giles took care of her ailing mother from 1989 until 1997 when her mother passed away. (Tr. 55).

When questioned by the ALJ, the vocational expert testified that two or more absences per month and two or more breaks during the work day on an unscheduled basis for about a half an hour would preclude competitive employment for Ms. Giles. (Tr. 62). When questioned by Ms. Giles’ attorney, the vocational expert testified that, assuming that Ms. Giles’ ability to carry out instructions, maintain attention and concentration and pace are very poor, meaning that she was not able to do so on a consistent basis, then Ms. Giles would be precluded from any employment. (Tr. 62).

CONCLUSIONS OF LAW

Scope of Review

In order for the court to affirm the Administrative Law Judge’s (ALJ) findings of fact, those findings must be supported by substantial evidence appearing in the record as a whole. See Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992); Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir.1989). Substantial evidence is more than a mere scintilla. It means relevant evidence a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1997); Cruse, 867 F.2d at 1184; Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir.1986). The court must take into account evidence which fairly detracts from the ALJ’s findings. Cruse, 867 F.2d at 1184; Hall v. Bowen, 830 F.2d 906, 911 (8th Cir.1987). Substantial evidence requires “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Cruse, 867 F.2d at 1184 (quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). The court must consider the weight of the evidence appearing in the record and apply a balancing test to contradictory evidence. Gunnels v. Bowen, 867 F.2d 1121, 1124 (8th Cir.1989); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.1987).

ALJ’s Determination of Disability

Determining whether a claimant is disabled is evaluated by a five-step process. See 20 C.F.R. § 404.1520(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).

The five steps are:

(1) If the claimant is engaged in substantial gainful activity, disability benefits are denied.
(2) If the claimant is not engaged in substantial gainful activity, her medical condition is evaluated to determine whether her impairment, or combination of impairments, is medically severe. If the impairment is not severe, benefits are denied.
(3) If the impairment is severe, it is compared with the listed impairments the Secretary acknowledges as precluding substantial gainful activity. If the impairment is equivalent to one of the listed impairments, the claimant is disabled.
(4) If there is no conclusive determination of severe impairment, then the Secretary determines whether the claimant is prevented from performing the work she performed in the past. If the claimant is able to perform her previous work, she is not disabled.
(5) If the claimant cannot do her previous work, the Secretary must determine whether she is able to perform other work in the national economy given her age, education, and work experience.

Trenary v. Bowen, 898 F.2d 1361, 1364 n. 3 (8th Cir.1990) (citing Bowen v. Yuckert, 482 U.S. at 140-42, 107 S.Ct. 2287); 20 C.F.R. § 404.1520(a)-(f).

“To establish a disability claim, the claimant bears the initial burden of proof to show that he is unable to perform his past relevant work.” Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir.1995) (citing Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir.1993)). If the claimant meets this burden, the burden of proof then shifts to the Commissioner to - demonstrate that the claimant retains the physical residual functional capacity (RFC) to perform a significant number of other jobs in the national economy that are consistent with the claimant’s impairments and vocational factors such as age, education and work experience. Id.

Under the first step of the above analysis, the ALJ determined that Ms. Giles had not engaged in substantial gainful employment since October 23, 2000. (Tr. 16). At the second step, the ALJ determined Ms. Giles had the following severe impairments: headaches, hypothyroidism, arthritis of the back and extremities, hypertension, and depression. (Tr.' 16). At the third step, the ALJ determined that Ms. Giles’ impairments were not equivalent to one of the listed impairments. (Tr. 16). At the fourth and fifth steps, the ALJ determined that Ms. Giles is unable to perform her past relevant work, but is able to perform other jobs in the national economy. (Tr. 16). Thus, the ALJ concluded that Ms. Giles is not “disabled.” (Tr. 16).

ALJ’s Disability Determination

Ms. Giles argues that, when the record is viewed as a whole, including her extensive history of largely unproductive medical treatment, there is not substantial evidence to support the ALJ’s finding that she can engage in competitive employment. Specifically, Ms. Giles argues that the ALJ’s determination failed to account for the unscheduled breaks and absences her medical conditions mandate, or the fact that she sleeps for two hours after taking her medication twice a day, the side effects of her medications, or her very poor ability to maintain attention, concentration and pace, which the vocational expert testified would preclude, competitive employment. Ms. Giles’ further, notes the ALJ’s failure to explain.why he apparently disregarded Daniel Ékstrom’s opinion from his consultative examination of Ms. Giles in November 2001 that Ms. Giles would have a poor ability to remember and understand instructions, procedures and locations and a very poor ability to carry out instructions and maintain attention, concentration and pace in a work setting. Instead, in evaluating Ms. Giles’ mental impairments, the ALJ found that she has a mild limitation in activities of daily living, a mild limitation in maintaining social functioning, a mild to moderate limitation in concentration, persistence, or pace, and has not had episodes of deterioration or decompensation. (Tr. 16).

The Commissioner contends that after properly engaging in the credibility analysis, the ALJ incorporated in to Ms. Giles’ RFC the impairments and restrictions he found credible, and the vocational expert responded to the ALJ’s properly formulated question that Ms. Giles could perform other work. Thus, the Commissioner argues, the ALJ’s determination that Ms. Giles is not disabled is supported by substantial evidence.

The ALJ gave no reason for failing to credit the findings of examining psychologist, Daniel Ekstrom, in setting forth his hypothetical to the vocational expert. Instead, the ALJ apparently adopted the findings of consultative psychiatrist, Dee E. Wright, Ph.D., who did nothing more than review Ms. Giles’ medical records. See Tr. at 16; Tr. at 265. It has long been established that “[t]he opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence.” See Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.1998). Generally, a consulting physician’s opinion is not considered substantial evidence, especially if contradicted by a treating physician. Charles v. Barnhart, 375 F.3d 777, 783 (8th Cir.2004). The regulations require the ALJ to give reasons for giving weight to or rejecting the statements of a treating physician. See 20 C.F.R. § 404.1527(d)(2). Whether the ALJ gives great or small weight to the opinions of treating physicians, the ALJ must give good reasons for giving the opinions that weight. Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir.2001). “The ALJ may discount or disregard such an opinion if other medical assessments are supported by superior medical evidence, or if the treating physician has offered inconsistent opinions.” Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir.2001).

“Likewise, the testimony of a vocational expert who responds to a hypothetical based on such evidence is not substantial evidence upon which to base a denial of benefits.” Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.2000) (“These assessments alone [of non-treating physicians] cannot be considered substantial evidence in the face of the conflicting assessment of a treating physician.”) Id. (citing Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir.1991)); Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir.1998) (“If a hypothetical question does not include all of the claimant’s impairments, limitations, and restrictions, or is otherwise inadequate, a vocational expert’s response cannot constitute substantial evidence to support a conclusion of no disability.”).

A review of the record reveals that Daniel Ekstrom was the only, mental health professional to actually examine Ms. Giles, though he did not “treat” her for any mental health issues. Ekstrom conducted a comprehensive examination of Ms. Giles and made detailed findings regarding the impact of her medical and emotional condition on her ability to function. Yet, Ekstrom’s opinion was obviously discredited by the ALJ, although no reasons for doing so.appear in the ALJ’s decision. This was error. Reeder v. Apfel, 214 F.3d 984, 989 (8th Cir.2000) (“We conclude that the ALJ erred by making his own estimate of Ms. Reeder’s IQ level, absent any support in the medical evidence and without specifically discrediting the estimate of the sole mental health examiner in this case.”)- When Ekstrom’s findings regarding Ms. Giles’ work-related abilities, i.e., very poor ability to carry out instructions, maintain attention, concentration, and pace were incorporated into the hypothetical posed to the vocational expert, he testified that Ms. Giles would be precluded from any employment. (Tr. 62). The ALJ’s determination that Ms. Giles was not disabled is not supported by substantial evidence.

ALJ’s Credibility Determination

Ms. Giles argues the ALJ erred in finding her not credible. Ms. Giles argues that the ALJ improperly interpreted her low earnings record to mean that she was unmotivated to work, when the record as a whole supports a contrary finding. Ms. Giles also takes issue with the handful of inconsistencies and' instances of medical noncompliance noted by the ALJ in rendering his judgment regarding her credibility, and the ALJ’s findings that her daily activities were inconsistent with an allegation of total disability.

The Commissioner responds that the ALJ properly evaluated the credibility of Ms. Giles’ subjective complaints and correctly determined that she had a residual functional capacity (RFC) that was consistent with the ability to perform other work. The Commissioner contends that the ALJ’s credibility determination is supported by substantial evidence in the record, and that the ALJ considered each of Ms. Giles’ alleged impairments.

When evaluating the credibility of a claimant’s subjective complaints, the ALJ may not disregard them “solely because the objective medical evidence does not fully support them.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). “The [ALJ] is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.” Id. In evaluating claimant’s subjective impairment, the following factors are considered: (1) the applicant’s daily activities; (2) the duration, frequency and intensity of pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Id. at 1321-22. Subjective complaints may be discounted if inconsistencies exist in the evidence as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.1994); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993). Where an ALJ seriously considers but for good reasons explicitly discredits a plaintiffs subjective complaints, the court will not disturb the ALJ’s credibility determination. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir.2001).

In assessing Ms. Giles credibility, the ALJ found her allegations to be less than fully credible and accepted her allegations only insofar as they are consistent with the determination that Ms. Giles is not disabled. (Tr. 26). In so determining, the ALJ found that: (1) Ms. Giles’ activities of daily living are inconsistent with, an allegation of total disability; .(2)- Ms. Giles has worked some since her alleged onset date; (3) There were inconsistencies between • Ms. Giles’ hearing testimony and medical records with respect to the date her headaches -began, the amount of weight she had gained, and the number of visits to the emergency room for her headaches; (4) Ms. Giles’ failed to stop smoking, when some of her impairments appear to be related to her smoking habit; (5) Ms. Giles’ compliance with treatment and medication are questionable, namely her failure to pick up a prescription for medication in September 2000, her failure to take prescribed medicine regularly until a week prior to a November 2000 doctor appointment, her failure to follow up on a referral to the UIHC headache clinic in July 2001, her self-discontinuation of cholesterol medication, her failure to complete an MRI scan ordered in August 2001, her refusal to take Depakote in August 2002 as recommended because she read it can cause hair loss, her failure to follow through on a doctor’s prescription for physical therapy in July 2003, and her refusal to have surgery in an effort to ameliorate her headaches; and (5) Ms. Giles modest and uneven work history. (Tr.' 25-26). The court will address these issues in turn.

, At the hearing, Ms. Giles testified that her 14 year-old daughter does the housework, but that she can do some cooking when she is feeling good and not having a migraine headache and that she does the laundry sitting down. (Tr. 51-52). She further testified that her 14 year-old daughter helps the seven year-old child with homework when Ms. Giles is having a migraine, that she makes sure that her two children go to school every day, and that she goes to their school activities when she is not having a migraine.- (Tr. 45, 55). When she is having a migraine, she testified that she does nothing but lie still and go to the emergency room for a shot. (Tr. 42). She testified that the migraine headaches make her nauseous and have caused her to black out, and that the medications she takes for her headaches make her drowsy, but have not helped in any manner. (Tr. 42^43, 57). After taking the medication, which she does twice a day, Ms. Giles testified that she has to lie down for a couple hours. (Tr. 43).

It is true that Ms. Giles is able to participate in some daily activities on days when she is not suffering from a migraine headache. However, “a claimant need not prove that he or she is bedridden or completely helpless to be found disabled.” Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989). See also Keller v. Shalala, 26 F.3d 856, 859 (8th Cir.1994) (finding it error to discredit the claimant’s subjective complaints of pain based on her daily activities which consisted of watching television, taking care of her dogs, and doing household chores, which claimant testified she could not do when she was suffering from a disabling headache); Forehand v. Barnhart, 364 F.3d 984, 988 (8th Cir.2004) (“We have long stated that to determine whether a claimant has the residual functional capacity necessary to be able to work we look to whether she has ‘the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.’ ”) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc)). The limited daily activities Ms. Giles is able to engage in, when she is not experiencing a migraine headache, do not support a finding that her allegations are not credible.

Likewise, the fact that Ms. Giles has worked some since her alleged onset date does not support the ALJ’s credibility determination. Ms. Giles testified that she lost her job with the Waterloo School System due to excessive absenteeism related to her migraine headaches. (Tr. 40). This testimony stands unrefuted. Ms. Giles’ unsuccessful attempt to hold a job and support her children while her disability application was pending does not make her subjective complaints less credible.

The court finds that the ALJ has either misstated or inflated the import of the alleged inconsistencies between Ms. Giles’ hearing testimony and her medical records. For example, Ms. Giles testified at the hearing that her headaches began in 1985 after she had a bad fall. (Tr. 41). The ALJ’s written decision erroneously states that Ms. Giles stated that her headaches first started in 1995. (Tr. 23, 25). Ms. Giles’ hearing testimony is therefore not inconsistent with her September 2001 report to Dr. Christiason that she had been having headaches for as long as she can remember. (Tr. 25). In fact, it was entirely consistent with what she reported to Dr. Thomas Mulakkan on October 24, 2000. (Tr. 161-62). Similarly, the medical records and Ms. Giles’ testimony regarding her weight gain over the last three to four years varies somewhat, but Ms. Giles’ weight appears to have fluctuated over the years and is not the basis of her disability claim.

Finally, a review of the record indicates that Ms. Giles visited the emergency room 14 times over a 18 month period (9-00 to 3-02), and visited various other urgent care facilities frequently as well. (Tr. 324). Ms. Giles testified that she has headaches daily, migraine headaches once or twice a month. (Tr. 42). When she experiences a migraine headache, she testified that she goes to the emergency room and gets a shot or something for the pain. (Tr. 42) Ms. Giles testified that her visits to the emergency room happened “like once a month” but then stated that her insurance company “started getting on” her about going there and told her to go to Convenient Care or go back to People’s Clinic. (Tr. 56). The record, when reviewed as a whole, does not support the ALJ’s finding that “[t]hese inconsistencies and exaggerations diminish the claimant’s credibility as to her allegations of total disability.” (Tr. 25).

The ALJ found that Ms. Giles’ refusal to a smoking cessation program and failure to stop smoking militates against a finding of disability when “some of Ms. Giles’ impairments appear to be related to her smoking habit.” (Tr. 25). A review of Ms. Giles’ medical records reveal that while she did, on one occasion, reject a referral to a smoking cessation program, there is nothing in the medical records indicating that any of her physicians have stated that her smoking was the cause of her problems or that her medical conditions would be relieved by quitting smoking. Under similar circumstances, the Eighth Circuit noted:

Although Kelley’s cardiologist advised her to quit smoking, he did not state that her smoking was the cause of her problems or that her complaints would be relieved by quitting smoking. Although she would undoubtedly improve her general health and well-being by doing so, there is no evidence that her musculoskeletal complaints would be affected. Under the circumstances of this case, we are reluctant to deny benefits solely because of Kelley’s failure .to quit smoking.

Kelley, 133 F.3d at 589-90. Ms. Giles’ smoking habit or her decision to decline the referral to the smoking cessation program do not diminish her credibility.

The ALJ also relied on Ms. Giles’ alleged non-compliance with prescribed treatment and medication-in discrediting her subjective allegations. (Tr. 25). In Ms. Giles’ vast medical records, the ALJ found that she had failed to pick up a prescription for medication in September 2000, failed to take prescribed medicine regularly until a week prior to a November 2000 doctor appointment, failed to follow up on a referral to the UIHC headache clinic in July 2001, self-discontinued her cholesterol medication, failed to complete an MRI scan ordered in August 2001, refused to take Depakote in August 2002 as recommended because she read it can cause hair loss, failed to follow through on a doctor’s prescription for physical therapy in July 2003, and refused to have surgery in an effort to ameliorate her headaches.

Ultimately, the record reveals that Ms. Giles has tried every, or nearly every medication available in an effort to treat her headaches, but to no avail. That she was tardy in picking up or starting a prescription, having an MRI conducted, or taking physical therapy, when living on a shoestring budget consisting solely of public assistance and battling her insurance company for coverage, as she testified to in the hearing does not diminish her credibility. At the hearing, the ALJ explored little, if at all, into the reasoning behind any of Ms. Giles’ alleged non-compliance, but found that it diminished her credibility nonetheless. Ms. Giles testified that she declined to have surgery because two of the three doctors she consulted advised her against it. (Tr. 53). A claimant’s unwillingness to have brain surgery against the advice of two physicians can hardly be grounds for finding her not credible.

Ms. Giles’ modest and uneven work history, as she testified to at the hearing, is the result of minimum wage jobs and her decision to spend eight years caring for her ailing mother. While it may raise doubts as to Ms. Giles’ motivation to work, it is not determinative nor a sufficient basis upon which to find her not credible.

For the above reasons, the ALJ’s determination that Ms. Giles is not fully credible is not supported by substantial evidence. Consequently, the ALJ’s determination must be reversed.

Reversal or Remand

The scope of a district court’s review of the Commissioner’s final decision is set forth in 42 U.S.C. § 405(g) which provides, in part, that:

[t]he court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.

42 U.S.C. § 405(g). The Eighth Circuit Court of Appeals has stated that:

[wjhere the total record is overwhelmingly in support of a finding of disability and the claimant has demonstrated his disability by medical evidence on the record as a whole, we find no need to remand.

Gavin, 811 F.2d at 1201-02. See also Beeler v. Bowen, 833 F.2d 124, 127 (8th Cir.1987) (although there was no shift in the burden to the Secretary, reversal of denial of benefits was proper where “the total record overwhelmingly supports a finding of disability.”); Stephens v. Secretary of Health, Educ., & Welfare, 603 F.2d 36, 42 (8th Cir.1979) (reversal of denial of benefits is justified where no substantial evidence exists to support a finding that the claimant is not disabled).

In the present case, the court concludes that the medical records as a whole support Ms. Giles’ subjective complaints regarding her migraine headaches. There were no medical records cited by the ALJ indicating that Ms. Giles’ subjective complaints were overstated or not sincere. Furthermore, the vocational expert testified that if Ms. Giles, because of her medical condition, would require two or more absences from work per month and two or more breaks diming the work day on an unscheduled basis for about a half an hour, then she would be precluded from competitive employment. (Tr. 62).

Additionally, it has already been noted by the court that the ALJ’s finding discounting the opinion of Ms. Giles’ examining psychologist is not supported by substantial evidence. Therefore, if Daniel Ekstrom’s opinion regarding Ms. Giles’ work-related abilities, i.e., very poor ability to carry out instructions, maintain attention, concentration, and pace were incorporated into the hypothetical posed to the vocational expert, then Ms. Giles would be precluded from any employment. (Tr. 62).

Accordingly, the court finds that the record supports a finding of disability. This is based on the fact that if the opinion of Daniel Ekstrom had been given its due weight and included in the RFC relied upon by the ALJ and if the ALJ had properly considered Ms. Giles’ credibility, she would have been found unable to be gainfully employed. Because a remand for “further hearings would merely delay receipt of benefits, an order granting benefits is appropriate.” Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir.1984).

Upon the foregoing,

IT IS ORDERED that this matter is reversed and is remanded to the Commissioner of Social Security to award benefits. 
      
      . The court’s order dated. April 26, 2005, did not contain all information intended. Accordingly, the court submits this revised order.
     