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First Circuit, defender of zombie pains; Social Security Disability

September 22, 2012

This is a US Court of appeals decision decided two weeks ago in the First Circuit. It is about a claimant for Social Security disability benefits who claim pain meds “made him feel like a ‘zombies'” and is again about the credibility of the pains alleged by this Social Security applicant. These three Circuit Judges think it hard to fool pain management specialists and that light activities don’t mean you can work a full work week. The case is remanded. A victory for the “zombie”.

WILLIAM E. ORMON, Plaintiff, Appellant,
MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant, Appellee.

No. 11-2107


2012 U.S. App. LEXIS 18926

September 7, 2012, Decided

Opinion per curiam – before Circuit Judges Torruella, Boudin and Lipez

zombie judges first circuit torruella boudin lipez

“Medical science confirms that pain can be severe and disabling even in the absence of ‘objective’ medical findings, that is, test results that demonstrate a physical condition that normally causes pain of the severity claimed by the applicant.” Carradine, 360 F.3d at 753 (citations omitted). Carradine is on point.

In that case, the claimant applied for disability benefits after injuring her back, and her diagnoses included degenerative disc disease, scoliosis, depression, and psychosomatic illness. The ALJ, as here, discredited the claimant’s allegations concerning the severity of her pain on the ground, in part, that psychological testing had shown that she was exaggerating the pain. The Seventh Circuit held that the ALJ’s reasoning in this regard was flawed.

First, the court explained that “[t]he question whether the [subjective] experience [of pain] is more acute because of a psychiatric condition is different from the question whether the applicant is pretending to experience pain, or more pain than she actually feels. The pain is genuine in the first, the psychiatric case, though fabricated in the second.” Id. at 754. Second, the court emphasized that the claimant’s extensive treatment history was inconsistent with a finding that she was exaggerating her pain:

What is significant is the improbability that [the claimant] would have undergone the pain-treatment procedures that she did, which included not only heavy doses of strong drugs . . . but also the surgical implantation in her spine of a catheter and a spinal-cord stimulator, merely in order to strengthen the credibility of her complaints of pain and so increase her chances of obtaining disability benefits; likewise the improbability that she is a good enough actress to fool a host of doctors . . . into thinking she suffers extreme pain.

Id. at 755 (citation omitted). Here, too, claimant sought treatment from many doctors, underwent back surgery and spinal injections, and was on pain drugs, some of which made him feel like a “zombie.” Transcript, at 675. Similarly, and while not out of the question, we too think that it is improbable that claimant would have had an easy time fooling the various doctors who treated him, especially Dr. Ross, a pain medicine specialist.

Last, although the ALJ did not mention the extent of claimant’s daily activities in discrediting his complaints of disabling pain, the Commissioner argues on appeal that these activities support the ALJ’s decision in this regard. As the Commissioner notes, claimant reported, in June 2007, that he goes grocery shopping, does laundry and the dishes, and takes out light trash. Id. at 780. However, claimant clarified that due to his back pain, he needs help bending when doing the laundry and the dishes, and he cannot handle heavy trash or yard work. Id. In any event, and as the court observed in Carradine, there is a “difference between a person’s being able to engage in sporadic physical activities and her being able to work eight hours a day five consecutive days of the week.” 360 F.3d at 755.

We therefore vacate the district court’s judgment and direct that court to remand the matter for further proceedings consistent with this opinion.

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