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pro se Social Security Zombie fails to persuade Maryland District Court

September 22, 2012

This case is another in the recent set of zombie credibility issues in Social Security appeals at US District Courts. Decided last week Sept 12, 2012 in Maryland. Again the expression is “feel like a zombie“.



2012 U.S. Dist. LEXIS 130556

Decided and Filed September 12, 2012

Opinion of U.S. Magistrate Judge Paul W. Grimm:

us magistrate judge paul grimm

The ALJ also noted the state agency physicians’ opinions that Claimant could perform a full range of light work, however, the ALJ ultimately found that the medical records did not fully support these opinions. The ALJ did determine that the Claimant had greater limitations than those found by the state agency physicians and therefore found that she was restricted to pushing/pulling only occasionally. (Tr. 25).

Claimant also alleges that the ALJ erred in determining the disabling effects of her pain, and failed to consider the pain medications she takes. Review of the ALJ’s decision and the entire record, however, undermines this contention. The ALJ recognized his obligation to give consideration to all subjective allegations in accordance with 96-7p, 1996 SSR LEXIS 4.(Tr. 21). FN4

— Footnote #4 — SSR 96-7p, 1996 SSR LEXIS 4, in relevant part, states: in addition to the objective medical evidence when assessing the credibility of an individual’s statements: 1. The individual’s daily activities; 2. The location, duration, frequency, and intensity of the individual’s pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms ; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board ); and 7. Any other factors concerning the individuals functional limitations and restrictions due to pain or other symptoms.

The ALJ stated he found Claimant’s statements regarding her impairments and their impact on her ability to work were credible, but only to the extent consistent with the residual functional capacity assessment. (Tr. 22). Importantly, the ALJ’s analysis did not end there. Rather, the ALJ stated that his finding was based, among other things, on the Claimant’s statements to her own health care providers about her pain levels, and the conservative nature of her treatments, her reported daily activities, and all of the information contained in the documentary reports. (Tr. 21-22, 276, 627).

In addition, the reports of the treating and examining physicians were discussed in the ALJ’s decision. For example, in December, 2005, Ms. Black was examined by a neurologist, Dr. Naeem Ahmad, who noted that Claimant exhibited a normal gait full strength in all her extremities. Dr. Agha Kahn reported on July 21, 2006 that her neck pain had clinically improved with treatment. (Tr. 23, 480). The ALJ also noted that Ms. Black started taking flexeril, Tylenol with codeine, and her testimony that her medicines made her feel like a zombie. (Tr. 22).

After carefully reviewing all the medical records, I have determined that the ALJ’s findings are substantially supported by the evidence of record. In sum, the ALJ’s finding that the Claimant’s statements regarding her pain and it’s effect on her ability to work were not entirely credible is supported by substantial evidence, and is in compliance with SSR 96-7p, 1996 SSR LEXIS 4.


Because the ALJ’s decision is supported by substantial evidence, the Commissioner’s Motion for Summary Judgment will be granted and the Claimant’s Motion will be denied. A separate Order will issue.

So this zombie argument that has been persuasive in other jurisdictions recently, did not persuade Judge Grimm and the denial of benefits is affirmed.

Nevertheless, Judge Grimm has now used the word, he cited to the transcripts but no quotes. Besides, Judge Grimm is already a sort of zombie judge in another way because his nomination to be promoted to District Court judge is currently languishing in Congress. President Obama nominated him back in February, maybe he can get confirmed by the Zombie Congress.

Finally, one wonders if the zombie argument was less successful here because the applicant was “pro se”. It’s always so hard to know exactly who deserves the credit or the blame for a legal zombie.

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