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Fibromyalgia Zombie denied Social Security

July 16, 2012

This is an other Social Security Disability case with “zombie”. It was decided this week, July 11, 2012 in Ohio. Again, a medication is claimed to create a zombie-like feeling.

In this case, Deborah Coontz has fibromyalgia but her credibility about the level of pain seems to have caused some issue about the level of her disability.

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

CASE NO. 5:11-cv-1164

This decision by U.S. Magistrate Judge Nancy A. Vecchiarelli, filed July 11, 2012, affirms the prior denial of benefits by the Administrative Law Judge (the ALJ).

In the section on “relevant medical evidence”, (wow, look at all those medications):

Plaintiff was taking Neurontin, Mobic, and Zanaflex. (Tr. 711.) She took Toradol when her pain became severe. (Tr. 711.) The Toradol, as well as Vicodin, provided some relief of her pain without any side effects. (Tr. 711.) The Neurontin, as well as Lyrica, caused blurry vision, swelling, and dizziness. (Tr. 711.) She tried Duragesic, but it caused gastro-intestinal problems. (Tr. 711.) She tried Soma, but it made her feel “like a zombie” and did not provide relief. (Tr. 711.) She tried Morphine, but she became “very violent” while on it. (Tr. 711.) Ultracet and Ultram made her skin itch. (Tr. 711.) She also tried Elavil and Wellbutrin, but they caused her mood to change and caused gastro-intestinal problems. (Tr. 711.)

Upon physical examination, Dr. Bressi indicated the following. Plaintiff appeared to be in “moderate discomfort.” (Tr. 712.) She was positive for 15 out of 18 tender points; the most painful areas were in her chest wall, trapezii, and behind her knees. (Tr. 712.) However, she walked with a normal gait and had good balance; she had good strength in her upper right extremity; she had an excellent grip; and she was negative for atrophy. (Tr. 712.) Dr. Bressi assessed Plaintiff with cervical disc degeneration, thoracic degeneration, lumbosacral degeneration, lumbosacral radiculitis, and fibromyalgia. (Tr. 712.) Dr. Bressi indicated that he would take Plaintiff off Neurontin, start her on Lyrica and Percocet, continue her on Zanaflex and Mobic, and schedule her for epidural injections. (Tr. 712.)

The Magistrate Judge concludes this opinion with something of a benchslap to Plaintiff (attorney Marcia Margolius at Margolius, Margolius, and Associates); in the final section regarding “The ALJ’s Assessment of Plaintiff’s Fibromyalgia”:

Plaintiff contends that the ALJ improperly assessed her fibromyalgia because she did not “differentiate between a pain/symptom analysis and evaluation of fibromyalgia.” (Pl.’s Br. 24.) Plaintiff explains that “the ALJ’s failure to recognize that fibromyalgia may be disabling, in the presence of normal clinical findings, resulted in an erroneous evaluation of the impact of [P]laintiff’s fibromyalgia and pain.” (Pl.’s Br. 24.) Plaintiff continues that “the ALJ did not examine whether objective evidence confirmed the severity of the alleged pain arising from the fibromyalgia diagnosis.” (Pl.’s Br. 25) (emphasis omitted). That is, “after acknowledging the evidence in the record supporting the diagnosis of fibromyalgia, the ALJ utilized a pain standard where objective, clinical findings are required” and, “[a]s a result, [Plaintiff’s] fibromyalgia and limitations have not been properly evaluated.” (Pl.’s Br. 25.)

Plaintiff’s argument is not clear. The presence of the objective findings of multiple tender points in this case says nothing about the pain or severity of Plaintiff’s fibromyalgia. The credibility of a claimant’s subjective complaints of pain usually is the primary basis upon which to determine the presence and severity of fibromyalgia because fibromyalgia generally cannot be established by objective medical evidence or diagnostic testing. See Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 990 (N.D. Ohio 2003). The claimant’s credibility was a significant issue before the ALJ in this case. The ALJ found Plaintiff’s subjective complaints less than fully credible because the record showed she exaggerate her symptoms, attempted to find work, made inconsistent statements, made statements that were unsupported by the record, and engaged in a wide range of daily activities. (Tr. 26-28.) Plaintiff has not taken issue with the ALJ’s assessment of her credibility. In short, Plaintiff has failed to show that the ALJ improperly assessed her fibromyalgia. Accordingly, this assignment of error is not well taken.

And so, the administration judgement affirmed, maybe it will appeal again? Meanwhile here’s zombie-like version of esteemed social security attorney Marcia Margolius:


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