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Zombies in the Southern District of Ohio – Blakley Medical Evidence in Social Security

December 5, 2012

Last week, two “zombie” Social Security back pain cases were decided at the United States District Court for the Southern District of Ohio. These cases were decided by two different Magistrate Judges, but (on Lexis) both also have the name of District Judge Thomas M. Rose after the magistrate judge name.

zombie district judge thomas rose

The two cases are:

Case No. 3:11-cv-321

2012 U.S. Dist. LEXIS 168587
Decided November 28, 2012.
Opinion by US Magistrate Judge Michael J. Newman.

zombie judge newman


vs. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.
Case No. 3:11cv00353
2012 U.S. Dist. LEXIS 169561
Decided November 29, 2012.
Opinion by US Magistrate Judge Sharon L. Ovington.

zombie judge sharon ovington

I am not sure why one case names Commissioner Astrue as a party and the other does not, but they are both cases of applicants appealing their decision from the Administrative Law Judge at the Social Security agency. And both cases are middle-aged women complaining of back pains and some psychological issues. Ms. Boden’s case is remanded to Social Security to give greater evidentiary weight to the applicant’s doctor’s testimony. Ms. Byrne’s case is affirmed, again denying benefits (though presumably she could try to appeal to the Sixth Circuit).

The case facts (with some citations removed):

Ms. Boden, “42 years old, 5’6″ tall, and weighs 165 pounds”, married, mother of two, “last employed as a part-time bartender at a Buffalo Wild Wings restaurant where her husband was the manager”:

testified that she is unable to sit and type on a computer or read because of numbness in her neck, which radiates into her arms. She experiences numbness and tingling in her fingers, and constantly drops things. She believes the pain in her neck and mid-back is getting worse, but the pain in her low back is stable. She takes medication for the pain, but no longer takes anxiety or depression medication because it causes her to feel “like a zombie.” Plaintiff acknowledged cooking, doing dishes, sweeping floors, mopping, vacuuming, and washing clothes since her alleged onset date of disability. However, she stated that because of her back and neck problems, she is unable to do these activities regularly. Plaintiff testified that she has no hobbies. She also testified that she has a poor appetite, and smokes between twelve to fifteen cigarettes per day. Plaintiff is able to feed, dress, and groom herself.

Ms. Byrne, “52 years old”, “claimed to be disabled by neck and back problems, having one kidney, bone loss, and depression”:

showed the ALJ a knot on her left shoulder in response to why she could no longer work. She testified that she cannot turn her neck. She testified that she has had this problem “all my life.” She noted her neck has gotten progressively worse over the years. Plaintiff testified to a number of medications for her pain which make her sleepy, “like a zombie laying.” She noted having problems affording some of her medication. Plaintiff noted that the medications do not particularly help with her pain, nor did a course of physical therapy or the use of heat and ice packs. Plaintiff testified that she began therapy every two weeks and takes psychotropic medications.

In both opinions the analysis cites the five steps of Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007) (with slight difference in phrasing the questions), Judge Newman in Boden:

1. Has the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant’s severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner’s Listing of Impairments (the Listings), 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant’s residual functional capacity (“RFC”), can he or she perform his or her past relevant work?
5. Assuming the claimant can no longer perform his or her past relevant work — and also considering the claimant’s age, education, past work experience, and RFC — do significant numbers of other jobs exist in the national economy which the claimant can perform?

But they reach strikingly different conclusions (of course these are surely, strikingly different women but the similarities are also notable):

Judge Newman writes:

the Court acknowledges that an ALJ is not required to accept a physician’s conclusion that his or her patient is “unemployable.” … Nevertheless, in this case, the ALJ failed to provide an adequate justification for failing to give controlling or even deferential weight to the opinion of Plaintiff’s treating physician, Krishna Reddy, M.D. See Blakley, 581 F.3d at 406.


In his analysis, the ALJ discounted Dr. Reddy’s opinion on the grounds that “[s]he is only a ‘pain management specialist,’ and [her] treatment consists solely of listening to the claimant’s subjective complaints and prescribing medication.” If anything, Dr. Reddy’s specialization as a “pain management specialist” weighs in favor of her ability to understand Plaintiff’s complaints of pain, treat those complaints, and determine Plaintiff’s capabilities in spite of her pain. Nevertheless, the ALJ found Dr. Reddy’s specialization to be a strike against her, contra to Social Security regulations which require the ALJ to consider a treating physician’s specialization in the weighing of that physician’s opinion.

Whereas Judge Ovington also writes:

The treating physician rule, when applicable, requires the ALJ to place controlling weight on a treating physician’s or treating psychologist’s opinion rather than favoring the opinion of a nonexamining medical advisor or a one-time examining physician or psychologist or a medical advisor who testified before the ALJ. Blakley, 581 F.3d at 406 (6th Cir. 2009); see Wilson, 378 F.3d 541, 544 (6th Cir. 2004). A treating physician’s opinion is given controlling weight only if it is both well supported by medically acceptable data and if it is not inconsistent with other substantial evidence of record. Blakley, 581 F.3d at 406 (6th Cir. 2009); see Wilson, 378 F.3d at 544.

But concludes that this medical evidence was properly weighed against the other medical evidence and:

The ALJ did not err by concluding that Dr. Jones’ extreme opinion was not entitled to controlling weight because she provided no adequate explanation for any restrictions in sitting, standing, or walking. The ALJ also explained that Dr. Jones’ opinion was not entitled to any significant weight because she was a family physician, not an orthopedic specialist. This consideration of the specialization factor is consistent with the Regulations

Read together these cases seem like a win for pain management specialists in the Ohio area and also a loss for people who use only the primary family care generalist (possibly because they can’t afford the pain management specialists).

Strangely, Lexis seems to say that both these women were represented by Stephanie D Dobson, of the firm Horenstein, Nicholson & Blumenthal. I guess that could be a database error, but if not, then maybe it’s really this attorney who likes the word “zombie”…?

zombie stephanie dobson

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