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“medications cause her to be in a ‘zombie mood.’ ” Another fibromyalgia Zombie credibility Social Security Disability case – Zombie Michael Astrue

August 9, 2012

August 8, 2012, another “zombie” in Federal Court decision regarding Social Security Disability benefits and a plaintiff’s credibility regarding medication. In case you missed it, there were two zombie cases decided last week in California (Otto v Astrue and Cortez v Astrue) and now another decided yesterday in Arkansas. Again there is the issue of credibility of the plaintiff in reference to the choice of medical treatment. In Phillips v Astrue, the medications cause “zombie mood” effects and the Administrative Law Judge denied benefits, implying that this overmedicalization is not credible. But, the Federal Court here reverses and remands for the Administration to reconsider Plaintiff’s credibility without implicating medical choices (I think?).

SANDRA PHILLIPS
V.
MICHAEL J. ASTRUE,
Commissioner, Social Security Administration

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS, PINE BLUFF DIVISION
CASE NO. 5:11CV00185 HDY
2012 U.S. Dist. LEXIS 111201

August 8, 2012, Decided

The plaintiff testified that she had an eighth grade education, and could read, write, and do simple math. She stated that she had received her certification as a nursing assistant. She said she last worked in 2006 or 2007 as a cashier at McDonald’s, but the job lasted only a month due to complications with her high blood pressure. Prior to that job, the plaintiff worked for seven to eight years, on and off, as a cashier/host at Pizza Hut. She stated she is prevented from working due to her blood pressure, which causes problems in her back, legs, and knees, and also causes vision problems. She stated she had pain “all over my body.” (Tr. 36). The plaintiff testified to undergoing a colostomy in August of 2009, with a reversal process scheduled for February of 2010. Upon questioning by her attorney, the plaintiff stated she had fibromyalgia, and has polyps in her stomach. The polyps cause daily pain. She stated she has the mental problems of manic depression and bi-polar condition, requiring treatment in the past and resulting in ongoing care, including the use of Thorazine, amitriptyline, and Xanax. She also stated she had cancer in the past, and she has arthritis, which requires her to take anti-inflammatory medications. She testified to having had asthma for about 12-13 years. She stated she takes Lorcet 2-3 times a day, and also is prescribed hydrochlorot, alprazolam, cetirizine, zyrtec, amlodipine, loratidine, and citalopram. She stated that the medications cause her to be in a “zombie mood.” (Tr. 45). As for her daily routine, the plaintiff testified to sleeping poorly and awakening around 10 a.m., then staying in her room all day due to the pain, spending about 4-5 hours on the computer. She stated she had been following this routine for 8-9 months. She stated she could sit for 15 minutes before needing to move around, and that she could not use her arms to reach and hold things. She said she could walk a block before needing “a breather.” (Tr. 48). She testified to troubles with bending, stooping, and squatting. The ALJ asked the vocational expert a hypothetical question, assuming an individual who could lift and carry 20 pounds occasionally and 10 pounds frequently, could stand and walk six hours, could sit for six hours, and wh[o] could push and pull the same amounts as she could lift and carry. Such a person could not perform the cashier/waitress job previously performed by the plaintiff. According to the vocational expert, there were, however, other jobs such a person could perform. The ALJ asked another hypothetical question, assuming an individual who could lift and carry 10 pounds occasionally, and less than 10 pounds frequently, could stand and walk no more than two hours, sit for six hours, and would be limited to simple tasks that could be learned by rote, with limited interpersonal contact and no contact with the public. The vocational expert opined that jobs existed for such a person. For example, the witness cited the jobs of lamp-shade assembler, watch crystal attacher, and escort vehicle driver. The vocational expert further opined that if such an individual could not reach overhead then such a limitation would preclude all work.

On February 26, 2010, the ALJ found the plaintiff was not disabled as defined in the Social Security Act. (Tr. 14-19). The ALJ specifically found the medical evidence established the plaintiff has the following severe impairments: fibromyalgia, adenocarcinoma, hypertension, chronic gastritis, degenerative joint disease of the knees, and asthma. The ALJ found the plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found the plaintiff’s testimony was not fully credible.

It’s another case with so many medications and fibromyalgia. No wonder the ALJ was skeptical; who would take all those pills if they still feel like crap? I would think Plaintiff would change the course of treatment and try something else. But they would she be accused of some lack of cooperation with doctors?

Also, the idea of “lamp-shade assembler” and “watch crystal attacher” as jobs she could do is just laughable.

The Court agrees with Plaintiff and remands for further proceedings:

We find merit in the plaintiff’s claims for relief, and find that the case must be reversed. The RFC as determined by the ALJ was based, in part, on the discounting of the plaintiff’s credibility. In so doing, the ALJ utilized the factors set forth in Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984). Included in the relevant factors is the adverse side effects of medications. In his opinion, the ALJ noted the plaintiff “takes potent pain medication for her fibromyalgia and joint pain.1 If it does not control her pain, it is not clear why she continues to use it rather than request an alternative for her pain. She has reported side effects with Lyrica.” The medical records show the plaintiff to have taken numerous medications for her chronic pain. While the ALJ seems to fault the plaintiff for failing to find the right medication(s), it is plausible that the plaintiff has received some benefit from the prescribed drugs but not received total relief. We also note that the plaintiff’s testimony was that the side effects from several of the medications, not solely Lyrica, resulted in a “zombie” mental state. The medical records showing a diagnosis of chronic pain, coupled with the numerous medications taken for pain, were not given adequate weight by the ALJ. It is not enough

Strangely (and perhaps simply because it is so fresh), Lexis does not have full details for this case. The name of the Magistrate Judge who signed the order is not included; nor any counsel names. Incidentally the original Magistrate Judge to whom this case was assigned was forced to recuse himself after it was determined that the Magistrate Judge’s brother was Plaintiff’s counsel at the underlying administrative proceedings. I guess Arkansas is a small world. (see Order of Recusal for Magistrate Judge Jerome Kearney brother of attorney Jeffrey Kearney).

So I don’t know who signed yesterday’s order but if someone with better research skills can let me know, I would be happy to make another judicial zombie portrait. In the meantime, Commissioner Astrue deserves a portrait.

zombie michael astrue

Michael J. Astrue is a George W. Bush appointee but has served the entirety of Obama’s (first?) term. So the term zombie social security has another meaning regarding his placement in his political context too.

Astrue’s six years presiding as Commissioner of Social Security has coincided with a monumental rise of zombie cases. By my count there are about 105 “zombie” Federal Court opinions in cases with the Commissioner of Social Security as named defendant; only 20 occur before Astrue. The first is in 1997 (Orr v. Chater, 956 F. Supp. 861). Also notably, only four of these cases are at the Court of Appeals level and three of those four cases occur before Astrue takes the position in 2007. See Beckley v Apfel, 578 F.3d 696 (8th Cir. 1998), Holland v Apfel, 1999 U.S. App. LEXIS 20358 (unpub 9th cir 1999), and Langley v. Barnhart, 373 F.3d 1116 (10th cir. 2004). All three of those were successful reversals for the Plaintiff so the stage is primed before Astrue arrives. Then between 2007 and present, there are 85 zombie social security cases; with only one Appeals Court cases (a reversal for Plaintiff diagnosed with ADHD, See Hopgood v. Astrue, 578 F.3d 696 (7th cir. 2009)).

My favorite aspect of Astrue is that he is published extensively under his pseudonym, A. M. Juster, an anagram of his name (read his poetry at his site). A graduate of Yale University, he is a respected translator of classics (notable Petrarch), a poet and literary critic. The 2010 article revealing the co-identity explains: “Juster won the Richard Wilbur Award for his collection The Secret Language of Women (2002), besides publishing book-length translations of Petrarch (the 2002 Longing for Laura) and Horace (the 2008 Satires).” I doubt there is any real connection to the zombies, but it is awfully coincidental to have such a literary minded Commissioner with an interested in “secret language of women” at the same time all these fibromyalgia zombie cases are arising. His own double life is also interesting to consider in context of #Anonymous (speech on the internet) but also in relation to questions of credibility (as in the Social Security cases discussed above). Does his ability to create two separately successful professional identities make him more credible or less?

zombie am juster

***UPDATE***8/15/12
The opinion in this case, Phillips v. Astrue, was signed by Magistrate Judge H. David Young.

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