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Another SSD fibromyalgia “zombie” remanded by District Court for Astrue to reassess credibility

August 21, 2012

Memorandum Opinion of District Judge William L. Standish of the Western District of Pennsylvania, August 15th 2012: Leah K. Henderson v. Astrue, Civil Action No. 11-955, 2012 U.S. Dist. LEXIS 115616.

This is another in the series of bipolar fibromyalgia zombies remanded for the Social Security Administration to reassess credibility. This case also involves surgery for Chiari malformations, migraine headaches, rheumatoid arthritis, Topamax, Oxycodone, Maxalt and Doxepin; also occasional cocaine and marijuana use.

Plaintiff filed an application for SSI on April 25, 2007, alleging disability since February 1, 2003 due to bipolar disorder, depression, panic attacks, post-traumatic stress disorder, migraine headaches and lupus.

The plaintiff was 35 years old at the time of filing:

In the past, Plaintiff has been employed by a retail clothing store (holiday season 2001-2002); a telephone customer service representative for a bank for three months in the summer of 2001; a cashier/attendant for a convenience store (1999-2000); and a delicatessen clerk in a grocery store (1997). (R. 67-69, 246).

In 2007, following the development of numbness in Plaintiff’s hands and feet which eventually evolved into paralysis, she was diagnosed with a Chiari malformation, a birth defect. Corrective surgery was performed in November 2008. The surgery resolved Plaintiff’s paralysis; however, she continues to suffer from numbness in her hands and feet and pain in her neck. (R. 71-73, 90).


On July 29, 2009, Plaintiff was evaluated by Dr. Mary Ann Eppinger, a staff psychiatrist at FamilyLinks, Inc. Plaintiff reported mood swings since she was a teenager and anxiety and depression for 6 years. Plaintiff’s symptoms included irritability, decreased energy, interrupted sleep and poor concentration, and she expressed the desire for medication that stabilized her mood but did not make her a “zombie.”

What’s great about the quotes around the one word is that it’s not really clear who first said it and how it got in the record now. Presumably the plaintiff said it in the medical office with Dr. Eppinger and then Dr. Eppinger wrote it in her notes and then repeated it in testimony? Did the lawyers also latch onto it and put it in briefs? Was it Judge Standish or his clerk that was eager to include it in this Henderson opinion?

zombie Judge William Standish district court pennsylvania

The Court goes on to address the Administrative Law Judge’s adverse credibility determinations, particularly as regards the allegations of pain, the illicit drug use, and missed doctor’s appointments. Also of issue were findings about normal strength of grip as relates to the tingling of fibromyalgia.


In sum, on remand, the ALJ should (a) obtain a consultative physical evaluation of Plaintiff; (b) obtain testimony from a VE regarding the proper classification of Plaintiff’s job in the retail clothing store as performed by Plaintiff for purposes of step four of the sequential evaluation process; (c) re-evaluate the medical opinions in the administrative record; and (d) reevaluate the credibility of Plaintiff’s allegations of disabling pain utilizing the proper analysis in cases involving a diagnosis of fibromyalgia.

As already discussed, there is a tremendous rise in Social Security “zombies” under SSA Commissioner Astrue. Nearly a third of all the Federal Court opinions with the word zombie have the commissioner of social security as the named defendant, and over 80% of those cases have been filed against Commissioner Astrue. This is obviously because the word zombie has become increasingly popular in recent years and because the nature of Social Security testimony involves incorporation of lay person descriptions of medical symptoms. Noticeable in these recent decisions is the issue of credibility of the zombie’s pain.

Recent cases show an increasing connection of zombie social security to fibromyalgia. There are only 20 case opinions in the Federal Courts that include the words fibromyalgia and zombie, all 20 have Social Security as the named party defendant. More than half of them were decided in the last three years and already five this year, 2012.

zombie michael astrue

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