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Social Security applicant “walked like a zombie” and “had boils”, denied benefits

October 22, 2012

Zombies just keep appearing in the Federal Court and mostly in social security case. Here again, a “zombie” is quoted from the record in regard to question of the social security applicant’s credibility. The following case opinion was decided last week, Oct 16 2012, in the Eastern District of California by US Magistrate Judge Carolyn K. Delaney:

GLEN ROE, Plaintiff,
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

No. 2:11-cv-2003 CKD
2012 U.S. Dist. LEXIS 148940

The ALJ set forth several reasons for finding plaintiff’s claims of limited exertional abilities to be not credible. AT 22-23. The ALJ noted that despite plaintiff’s claim of severe disabling back pain, the imaging studies demonstrated mild findings and there was no evidence of nerve root compression. AT 22, 40, 106, 146, 195, 235. The ALJ also considered Dr. Lewis’ evaluation which showed generally good range of motion and full motor strength. AT 22, 169-171. With respect to plaintiff’s allegation of disabling eczema, the ALJ correctly noted that plaintiff did not report taking medications for this allegedly disabling condition. AT 22, 110, 122, 133. While plaintiff is correct that the medical records indicate plaintiff was prescribed some medications for his skin condition, those records also indicate that with treatment, plaintiff’s condition improved. AT 263, 272. The ALJ also factored into the credibility analysis the lack of radiological imaging or other laboratory evidence or clinical findings to support plaintiff’s claims regarding disabling knee pain. AT 23. Also noted was the lack of treatment or any diagnosis of a kidney condition as claimed by plaintiff. AT 23. The ALJ also considered the conservative treatment plaintiff was prescribed for his ear pain (attributed in the medical records as “most likely secondary to ear wax”) and the head, ear, eye, nose and throat examinations which were within normal limits. AT 23, 169, 221. Finally, the ALJ discredited plaintiff’s claims of poor memory based on plaintiff’s failure to report any such problems to his treating physicians and because of plaintiff’s ability to recall details of his treatment from three years prior to the hearing. AT 23. In light of all these factors undermining plaintiff’s credibility, the ALJ properly found the consulting examining physician’s assessment persuasive and the onetime observation of a social security field representative that plaintiff had difficulty removing his wallet due to hand pain as inconsistent with the consultant’s opinion. AT 22, 103. [Footnote 6]

Footnote 6 The ALJ’s failure to specifically address the minimal testimony of plaintiff’s sister that when plaintiff had “boils,” he walked like a “zombie” is not a basis for reversal of the ALJ’s decision. In this case, the sister’s testimony was, at best, cumulative of plaintiff’s testimony, which was properly discredited. In addition, the sister did not testify as to the duration of plaintiff’s “boils” and although indicating plaintiff suffered some pain in association with the boils, did not testify plaintiff was precluded from walking as required for the performance of light work.

The factors considered by the ALJ were all valid and supported by the record. The ALJ’s credibility determination was based on permissible grounds and will not be disturbed.

Now because of the way this “zombie” is in the footnote it sort of seems like the Judge is specifically responding to arguments that the testimony is basis for the reversal. So I am going to assume that this “zombie” was pressed into the arguments by plaintiff counsel John Vincent Johnson in briefs (but I don’t know that).

Also, I still need to spend more time with all the older cases of Social Security zombies but I think there is a pattern in which if the applicant alleges they are a zombie then the ALJ needs to have more good reasons why the applicant is not credible. But if there are more reasons, then being “zombie” condition itself is not enough for a remand. Still, the courts disagree. See recent 1st Circuit opinion and see prior recent social security zombie credibility issues.

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