Court looks at deficiencies in determining disability
Chicago Daily Law Bulletin
March 15, 2010
by MARK D. DEBOFSKY
Two related Social Security disability cases were consolidated in Parker v. Astrue, No. 09-2270 (7th Cir.), an opinion issued by the 7th U.S. Circuit Court of Appeals March 12, 2010. The court used the occasion to address recurrent deficiencies it had been seeing in Social Security disability determinations, making it clear that the court will not uphold an administrative decision "that fails to mention highly pertinent evidence" or "because of contradictions or missing premises fail to build a logical bridge between the facts of the case and the outcome."
The first case, brought by Denise Parker, alleged that Parker was disabled on account of a chronic pain disorder that continued to cause her to experience excruciating pain despite treatment with surgery and medications. Parker's physicians were unanimous in their description of her severe, constant, and debilitating pain, yet the administrative law judge who decided the claim deemed her capable of working. While the ALJ acknowledged in her opinion that the claimant's medically determinable impairments could reasonably be expected to produce the claimed symptoms, the ALJ nonetheless found "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible."
On appellate review, the 7th Circuit was troubled that the same boilerplate language appeared in three Social Security cases argued on the same day, and complained such language was "not only boilerplate; it is meaningless boilerplate." The court explained the trouble with the statement that a witness's testimony is "not entirely credible" (emphasis in original) was that the reviewing court is left with "no clue as to what weight the trier of fact gave the testimony." Compounding the difficulty, immediately following the credibility finding, the ALJ wrote there was "little objective evidence to support the claimant's allegations of extreme pain." The court found it apparent that the ALJ was referring to the absence of a test such as an X-ray or blood test that would establish the cause of the symptoms.
However, as the court of appeals pointed out, the etiology of pain is often unknown, and it is inappropriate to conclude from the inability of the treating doctors to ascribe a cause to the pain that the claimant is "faking it." Moreover, the court was critical of the ALJ for her finding that one would expect the surgery to have provided relief, pointing out "[t]he fact that a medical procedure fails is weak evidence that the patient is a malingerer."
The court was also skeptical of the ALJ's concern that the plaintiff did not follow up with a pain clinic, suggesting there were "many possible explanations" for her not doing so; likewise, the court deemed it absurd that the ALJ found it suspicious that Parker was using a cane without a prescription since no prescription is required to obtain a cane and the use of a cane was suggested by an occupational therapist. Nor was the court persuaded by the ALJ's finding that the physician's reports of disabling pain should be discounted because they were based on Parker's subjective complaints. While true, the only evidence in the record that cast doubt on the complaints were reports from two non-examining state agency physicians that the ALJ never even mentioned. Consequently, the Social Security Administration's lawyers' heavy reliance on those records in briefing and oral argument was deemed to run afoul of the Chenery doctrine ( SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943)) that forbids agency lawyers from defending an agency decision on grounds the agency itself had not relied upon.
The court distinguished between a determination that finds no objective support for pain complaints and therefore dismisses them, and a finding that the absence of objective support reduces the ALJ's "estimate of the probability that the claim is true." Because the ALJ chose the former and not the latter, the determination was overruled. Finally, the court faulted the ALJ's failure to consider Parker's asthma and incontinence. While neither condition itself was disabling, the ALJ was required to "consider the cumulative effect of impairments not totally disabling in themselves" because such conditions could exacerbate the problems created by the severe pain.
The second claim was brought by Nary Kheng, a Cambodian refugee who came to the United States in 1981, and who alleged she was disabled on account of diabetes, hepatitis B, depression and post-traumatic stress disorder. The record revealed that Kheng lost both of her parents and two siblings to the Pol Pot regime, and she herself had been tortured at the age of 13 or 14. Kheng alleged she became disabled when nightmares triggered by her past experience both interfered with her sleep and invaded her mind during the day, preventing her from working. She also suffered from bouts of memory impairment and anxiety symptoms. The apparent major difficulty with the case was that the plaintiff had to establish her disability began by March 2004 because after that date she was no longer eligible for Social Security disability benefits due to a lack of sufficient quarters of Social Security coverage. While the court acknowledged it was unclear from the record whether the psychiatric impairment had progressed sufficiently by 2004 to reach a level of disabling severity, the court ruled the ALJ's consideration of the evidence was inadequate. The ALJ also used the boilerplate language finding the medically determinable impairments could have been expected to produce the alleged symptoms but that the claimant's testimony was not entirely credible. The ALJ then contradicted himself by concluding the evidence of psychiatric impairments did not surface until after the date Kheng was last eligible for benefits, even though the ALJ mentioned the symptoms were present earlier and there were no findings questioning the veracity of Kheng's report of her symptoms. The court concluded the ALJ should have determined whether the plaintiff's symptoms were presently disabling and then retained a medical expert to determine the severity of her condition in March 2004.
Consequently, both Parker and Kheng's cases were remanded to the Social Security Administration for redetermination.
There is a lot of food for thought in this opinion. Determining whether someone is disabled is a difficult task under the best of circumstances; without "objective" evidence such as imaging or blood tests, though, it is a near-impossible task to achieve consistently accurate decisions. Social Security Administrative law judges are called upon frequently to make such determinations in the course of hearings usually lasting less than an hour and to document their findings in written opinions. What this ruling decries is that a shorthand used by ALJs as a rationale for denying benefits often short-changes claimants of their right to a full and fair adjudication of their claims. The 7th Circuit was right to point out that assessing someone as "not entirely credible" without further explanation makes it impossible for a reviewing court to evaluate the claim determination.
Moreover, the ALJ's analysis of pain in the Parker case is one that frequently plays out in other disability evaluations. Aristotle identified the logical fallacy identified by the 7th Circuit and titled it the "fallacy of accident" which occurs when one tries to apply a general rule to a situation where an exception applies. Here, the ALJ's rejection of Parker's pain complaints due to the absence of proof of an identifiable medical source for her complaints or because of the judge's belief that surgery should have relieved her symptoms was ruled improper because two doctors corroborated the complaints and there was no contrary evidence. Similarly, the ALJ's refusal in the Kheng case to consider the severity of the psychiatric condition because of an absence of medical records, despite recognition of other earlier evidence showing the existence of severe psychiatric symptoms was another variation on the same theme. Other examples are disability benefit denials based on a lack of musculoskeletal or neurological findings when the condition at issue (e.g., fibromyalgia) does not exhibit any such findings. Or when a claim is denied due to the absence of time-concurrent medical documentation in cases where the claimant was either too poor to afford treatment until the condition became critical or life-threatening, or, as is often the case, involves a psychiatric impairment that the claimant refuses to acknowledge. See, e.g., Radford Trust v. First Unum Life Insur.Co. of America, 321 F.Supp.2d 226 (D.Mass. 2004)(lawyer with schizophrenia refused to obtain treatment until after he was fired from a law firm; court rejected insurer's assertion that lack of time concurrent documentation precluded claim). The Parker decision recognizes that there are no shortcuts for careful consideration and analysis of all factors relevant to a disability benefit determination.