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Another zombie credibility Social Security case – but different result

August 4, 2012

ZombieLaw just told you about the case of Raymond Otto in which Judge McDermott remanded to Social Security Administration to reassess credibility regarding not pursuing psychiatric treatment. But in another case decided this week, also in California, a different Magistrate Judge did not remand despite a similar issue.

SALLY CORTEZ, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:11-cv-00474-LJO-SMS
2012 U.S. Dist. LEXIS 107678

Decided August 1, 2012, by Magistrate Judge Sandra M. Snyder

the ALJ concluded that Plaintiff was not disabled.

In evaluating the Commissioner’s decision, the ALJ’s findings of Plaintiff’s lack of credibility must not be overlooked. Noting various doctors’ observations that Plaintiff was malingering, making misrepresentations, was less than fully cooperative, and put forth less than full effort during examinations, Judge Madsen concluded that Plaintiff “was seeing physicians primarily in order to generate evidence for this application and appeal, rather than in a genuine attempt to obtain relief from the allegedly disabling symptoms.” AR 18-19. In support of her conclusion, the ALJ noted (1) numerous medication changes, ostensibly due to side effects or ineffectiveness; (2) lack of compliance with prescribed medications, suggesting that Plaintiff’s symptoms may not have been as limiting as she alleged; (3) numerous cancellations and missed appointments; and (4) a global assessment of functioning that, except for her two hospitalizations, averaged approximately 60. Accordingly, Judge Madsen found that Plaintiff’s statements regarding the intensity, persistence, and limiting effects of her symptoms were not fully credible. Plaintiff does not challenge the ALJ’s credibility findings in this appeal.

Wait, why not!? Shall we blame her attorney, Sengthiene Bosavanh of Milam Law
zombie sengthiene bosavanh

Or should the Magistrate Judge Sandra M. Snyder have recognized this issue in the interest of justice. Maybe we should blame both (but I can’t find Hon. Snyder’s image).

The record is clear that the Plaintiff did complain of bad reactions to medication (Klonopin) and the ALJ did find that

Plaintiff had not engaged in substantial gainful activity since the alleged onset date of June 13, 2006. Her severe impairments were bipolar disorder, depression, and mild cervical and lumbar degenerative joint disease.

but

None of these impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1

despite

In September 2007, Plaintiff demonstrated oversedation and excessive isolative behavior. She told Halverstadt that she felt stressed, depressed and “zoned out” (“like a zombie“). AR 593. She complained to nurse Barbara Axberg that she was drowsy and too out of it to care for her children. [The therapist] Halverstadt observed blunted affect, depression, anxiety, worry, sadness, irritability, anger, paranoia, audio and visual hallucinations, anhedonia, and suicidal thoughts and ideation.

Recall that Judge McDermott cited Nguyen v Chater for the principle that

“it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation”

But as Judge Snyder points out, there is a limited scope of judicial review. Therefore in Ms. Cortez’s case, this court affirms, finding

substantial credible evidence supported the ALJ’s determination that Plaintiff was not disabled.

Amazingly these two zombie cases were decided in the same state and within a day of each other and yet have such notable difference. Perhaps rather than blame anyone involved in this case, we should merely commend again Judge McDermott and Mr. Otto’s counsel, William Kuntz .

I hope that Ms. Cortez will appeal but having not raised the credibility issue it might now be impossible to appeal on that issue. ? It seems wrong to consider mentally disabled people not credible because of difficulties engaging in the process of psychiatric treatment, but of course, that is only part of the story. These determinations are, obviously, never easy.

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4 Comments
  1. I would have thought that bipolar disorder would be a really really difficult condition to fake ~ especially the manic side of it. How can a person possibly fake having too much energy and being euphoric (or even irritable)..? I’m talking here of inpatient settings…

    • I’m not really sure, but the findings here don’t dispute the bipolar diagnosis but deny disability benefits.

      Thanks for reading.

Trackbacks & Pingbacks

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