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Another zombie remanded to Social Security on issues of credibility analysis

August 28, 2012

The Federal Courts have again remanded another Social Security disability denial for reconsideration of plaintiff’s credibility. Here again, the plaintiff claims that medications make him feel like a zombie and the Court latches on to this terminology in remanding. In this case it is pain medications for back pain causing the zombie like feeling.

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

No. 11 CV 2843, 2012 U.S. Dist. LEXIS 120498

Decided August 24, 2012, by opinion of US Magistrate Judge Young B. Kim:

To alleviate the continuous back pain and pain in his cervical spine, Misevich testified that he takes Demerol, which leaves him “very fatigued,” “very drowsy,” and “worn out.” (Id. at 40-41, 57.) Misevich stated that the Demerol provides relief for about four hours—alleviating the pain about 70 percent—before it wears off and he has to take more. (Id. at 42, 57.) Prior to the Demerol, Misevich took a variety of pain medications—Vicodin, Norco, Oxycodone, and morphine sulfate, extended release—with varying degrees of success. (Id. at 40.) These medications, according to Misevich, left him unable to function and made him feel “like a zombie.” (Id.) Misevich sees Dr. Reiter every three to four months to monitor his use of pain medication. (Id. at 41.)


the ALJ’s opinion contains insufficient analysis required of the other mandated SSR 96-7p factors. See Villano, 556 F.3d at 562. For example, the ALJ failed to adequately explain why she found Misevich’s testimony regarding the limitations of his pain medications not credible. Misevich testified that to alleviate his continuous back pain, he took a variety of pain medications—Vicodin, Norco, Oxycodone, and morphine sulfate, extended release—that left him unable to function and made him feel like a zombie (A.R. 40), a side effect he reported to Dr. Reiter (id. at 796). According to Misevich, the Demerol he currently takes—which provides relief for about four hours and alleviates the pain about 70 percent—leaves him “very fatigued,” “very drowsy,” and “worn out.” (Id. at 40-42, 57.) But despite the pain medication, Misevich testified that he continues to suffer from constant pain every day. (Id. at 40.). He stated that lying flat is the only position that provides him any relief, and that because of the pain, he can only walk one-half block and sit for seven to 11 minutes before having to stand. (Id. at 41-42, 46.)

The ALJ noted the limitations Misevich described due to his pain and the side effects of the pain medications (id. at 17-19), but she failed to explain why she found these allegations not fully credible. Although Misevich testified that the Demerol alleviated his pain, that admitted improvement does not necessarily equate with the ability to work on a full-time basis, particularly where Misevich testified that Demerol left him very fatigued. See e.g., Scott, 647 F.3d at 739 (“There can be a great distance between a patient who responds to treatment and one who is able to enter the workforce.”). The ALJ failed to analyze why she found the described limitations not fully credible, or to explain how they squared with her conclusion that Misevich could function while taking them to a point of being able to perform full-time work. Such an omission was reversible error. In reaching this conclusion, the court rejects the Commissioner’s assertion that the ALJ could reasonably conclude Misevich’s claims of pain were not credible because Dr. Reiter’s contemporaneous treatment notes do not reflect any complaints of side effects from the medication. (R. 27, Def.’s Mem. at 12.) A claimant’s failure to identify side effects does not necessarily undermine credibility. See Terry, 580 F.3d at 477.

The Court also highlights that “the ALJ erred by using the boilerplate language regarding credibility repeatedly criticized by the Seventh Circuit.” Explaining:

the ALJ began her assessment of Misevich’s credibility by stating that while “the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms . . . the claimant’s statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” (A.R. 18.) The Seventh Circuit has consistently criticized this language as “even worse” than “meaningless boilerplate,” because it “gets things backwards”: “[d]oubts about credibility [are] critical to [the] assessment of ability to work, yet the boilerplate implies that the determination of credibility is deferred until ability to work is assessed without regard to credibility.” Bjornson v. Astrue, 671 F.3d 640, 645-46 (7th Cir. 2012); see also Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“Credibility findings must have support in the record, and hackneyed language seen universally in ALJ decisions adds nothing.”). Although the ALJ’s inclusion of such language does not warrant automatic remand, see Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008), remand is appropriate here for the ALJ’s credibility determination also fails to build the required logical bridge.

Also interesting is that “Vocational expert (“VE”) Thomas Gusloff testified … that the following sedentary, unskilled positions would be available: order clerk for food and beverage, preparer for plated ware, and a stuffer of toys.”

Really? Stuffer of toys? Is that a job? Where?

Meanwhile, Magistrate Judge Kim clearly enjoyed the “zombie” reference in the record and included it twice in the opinion. Honorable Judge Kim is no stranger to administrative law and was himself previously an Administrative Judge (at the EEOC). According to this biography: “He is the first Asian American to take the federal bench in the Seventh Circuit and only the fourth Korean American to serve as a federal judge in U.S. history”. He was born in South Korea and attended Loyola University Chicago School of Law.

zombie judge young kim

Both the Seventh Circuit and Korea, have already been implicated on this ZombieLaw blog. PTSD from the Korean War is the context for the only SCOTUS zombie mention and Judge Posner’s evil zombies are of course Seventh Circuit. Judge Posner also wrote the opinion in American Amusements, finding first amendment rights in zombie video games.

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