                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3459
                                  ___________

Sharon Hatcher,                        *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
v.                                     * District Court for the Eastern
                                       * District of Arkansas
Jo Anne B. Barnhart,                   *
Commissioner of Social                 *       [PUBLISHED]
Security Administration,               *
                                       *
            Appellee.                  *
                                  ___________

                            Submitted: April 16, 2004
                                Filed: May 28, 2004
                                ___________

Before LOKEN, Chief Judge, BYE, Circuit Judge, and MAGNUSON,1 District
      Judge.
                             ___________

MAGNUSON, District Judge.

     Appellant Sharon Hatcher appeals from the District Court’s grant of summary
judgment in favor of Appellee Jo Anne B. Barnhart, Commissioner of Social Security.
We reverse and remand.

      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
BACKGROUND

      Appellant Sharon Hatcher (“Hatcher”) claims a disability resulting primarily
from fibromyalgia. She applied for Social Security Disability Insurance benefits in
September 1998. Her application was denied both initially and on appeal. She then
sought a hearing before an Administrative Law Judge (“ALJ”). At the time of the
hearing, she was 46 years old. The ALJ determined that Hatcher could return to her
past work as a telemarketer and denied her application. On the parties’ cross-motions
for summary judgment, the District Court affirmed the ALJ’s decision, and this
appeal followed.

       Hatcher has an extensive medical history, documented in a two-volume
administrative record. She was diagnosed with fibromyalgia in 1998. In addition to
fibromyalgia, she suffers from degenerative disk disease in her back, carpal tunnel
syndrome in both wrists, rheumatoid arthritis, and depression. She takes a wide
variety of medication for these various complaints, and appears to visit either a
medical doctor or a psychiatrist more than once per month.

       The ALJ determined that Hatcher’s complaints of pain were not entirely
credible. Further, the ALJ discounted the opinion of one of Hatcher’s treating
physicians, Dr. Williams, who opined that Hatcher was unable to work. According
to the ALJ, this opinion usurped the ALJ’s role to determine disability and was in any
event inconsistent with the medical record. The ALJ relied in part on the opinion of
a one-time medical examiner, Dr. Leonard, who found that Hatcher “probably would
be able to hold down gainful employment.” (Admin. Tr. at 24.)

      Hatcher contends that the ALJ erred in discounting her treating physician’s
opinion. She argues that all of the medical evidence in the record, aside from that
generated by the Social Security Administration, shows that she suffers from
fibromyalgia and other complaints so severely that she is unable to work. Indeed, she

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testified that she sleeps approximately five hours every day, that she is unable to do
housework, that she does not take a shower unless her husband is at home because
she is afraid of falling in the shower, and that she cannot concentrate or perform any
substantial everyday living tasks.

STANDARD OF REVIEW

      This Court reviews the initial decision to deny benefits to determine whether
substantial evidence on the record as a whole supports that decision. Bailey v. Apfel,
230 F.3d 1063, 1065 (8th Cir. 2000).

DISCUSSION

       In October 2003, a panel of this Court addressed a situation remarkably similar
to the instant case. Cox v. Barnhart, 345 F.3d 606 (8th Cir. 2003). The plaintiff in
Cox applied for disability benefits on the basis of fibromyalgia and costochondritis.
The ALJ disregarded the opinion of Cox’s treating physician, who, like Hatcher’s
physician, opined that Cox was unable to work. The ALJ instead relied on the
opinion of a one-time medical examiner, the same Dr. Leonard on whose opinion the
ALJ in the instant matter relies. The panel ultimately found that the ALJ improperly
disregarded the opinion of Cox’s treating physician. Id. at 609. Further, the panel
determined that the opinion of Dr. Leonard could not constitute substantial evidence
supporting the ALJ’s decision. Id. at 610 (citing Jenkins v. Apfel, 196 F.2d 922, 925
(8th Cir. 1999)). The Court reversed the grant of summary judgment to the
Commissioner, and remanded the case for a determination of whether Cox could find
employment in a competitive national economy, pursuant to McCoy v. Schweiker,
683 F.2d 1138, 1147 (8th Cir. 1982) (noting that residual functional capacity of
claimant “is 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”).

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       The instant matter is almost indistinguishable from Cox. Here, as in Cox, the
treating physician opined that Hatcher was unable to work. As in Cox, all of the
treatment notes support Hatcher’s complaints and her claimed limitations. As in Cox,
there is nothing in the record that contradicts Hatcher’s physician’s opinion aside
from the opinion of the ALJ-appointed expert.

       Both the ALJ’s determination and the decision on the motions for summary
judgment were issued long before this Court decided Cox. Thus, neither the ALJ nor
the District Court had the benefit of this Court’s analysis in Cox. The ALJ and the
District Court should have the opportunity to review their respective decisions in
light of Cox. The proper remedy is therefore to reverse the decision below and to
remand for consideration of our decision in Cox.

       Accordingly, we reverse and remand for further proceedings in conformity with
this opinion and with the decision in Cox v. Barnhart, 345 F.3d 606 (8th Cir. 2003).



LOKEN, Chief Judge, dissenting.

       Like the district court, I conclude that substantial evidence on the
administrative record as a whole supports the Commissioner’s decision to deny
Sharon Hatcher’s application for Social Security disability benefits. In my view, it
is inherently contrary to our obligation to apply the substantial evidence standard of
review to reverse because this case is “remarkably similar” to our decision in Cox v.
Barnhart, 345 F.3d 606 (8th Cir. 2003), when the administrative record in that case
is not before us. Accordingly, I respectfully dissent.
                        ______________________________




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