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SIDBERRY v. BOWEN

June 26, 1986

NORINE V. SIDBERRY
v.
OTIS R. BOWEN, Secretary of Health and Human Services



The opinion of the court was delivered by: POLLAK

 MEMORANDUM and ORDER

 Plaintiff seeks review of the decision of the Secretary of Health and Human Services denying her application for disability insurance benefits and Supplemental Security Income. She has moved for summary judgment, arguing that the decision of the Administrative Law Judge (ALJ) was not supported by substantial evidence. In response, the Secretary has moved for summary judgment affirming the Secretary's decision.

 Plaintiff is a thirty-three year old woman who suffers severe pain in her chest, upper extremities, and back. She was first hospitalized in 1972, when she had surgery to remove a tumor on the wall of her chest (leimyosarcoma). Surgery included the resectioning of her chest wall, partial resection of two ribs, and the insertion of wire mesh. Over the next thirteen years, plaintiff was hospitalized seventeen times; many of these hospitalizations were necessary to treat the recurrent breakdown of her chest wall. During this period, plaintiff held jobs as a teacher's aide (from 1973 to 1979), and as a social worker (from 1979 to 1984). In her application for disability benefits, she identified the onset date of her disability as June 29, 1984.

 The ALJ determined that plaintiff had a severe chest wall impairment, and was unable to perform her past relevant work. Tr. 20, 21. He also concluded, however, that plaintiff did have the residual capacity to perform in such sedentary jobs as ticket booth attendant, cashier, or telephone clerk. When the ALJ determines that a claimant cannot perform past relevant work, the burden shifts to the Secretary to prove that the claimant can perform other work. Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984). The ALJ's decision that a claimant can perform other work must be supported by substantial evidence, which the Third Circuit defines as "'such relevant evidence as a reasoning mind might accept as adequate to support a conclusion.'" Id., quoting Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). The question in this case is therefore whether the ALJ's decision is supported by substantial evidence, keeping in mind that the burden of proof is on the Secretary.

 The ALJ's decision rests on two conclusions. First, although the ALJ stated that, in his view, "the claimant does experience pain," tr. 19, he concluded that her testimony as to the degree of pain she suffers and the degree to which her pain limits her activities was "overstated and exaggerated." Second, the ALJ relied on the answer of a vocational expert, Dr. Jason M. Walker, whose response to the ALJ's hypothetical question suggested that there were jobs in the economy that plaintiff would be capable of performing.

 The ALJ did not explain in detail his reasons for discounting plaintiff's testimony. The pertinent parts of his decision read as follows:

 
The undersigned has specifically considered the claimant's testimony with regard to the degree and severity of the pain she experiences, and the limitations that such pain imposes upon her ability to function, and finds that, based on the medications she testified that she takes for pain control, and the activities in which she engages, her testimony is overstated and exaggerated.

 Tr. 19. In the three preceding paragraphs, the ALJ discussed plaintiff's testimony. He stated that "prior to December, 1984, [plaintiff] was only taking Extra Strength Tylenol for the pain she was experiencing, and after Percocet was prescribed in December, 1984, she testified that she only takes six per week." This statement, read in light of the ALJ's conclusion, and with its repeated use of the word "only," suggests that the ALJ found plaintiff's testimony as to the medication she was taking was inconsistent with her testimony as to her pain. The ALJ also stated that plaintiff contradicted herself in her testimony: at one point plaintiff said that the heaviest object she could lift off a table was a magazine or ashtray, while at another point she said she could lift a half-gallon of milk. Finally, the ALJ noted that the plaintiff's activities included reading novels and magazines, watching television, and cleaning, painting, and decorating ceramic objects. Tr. 19.

 The ALJ's explanation for finding that plaintiff's testimony was exaggerated is not reasonable, and is not supported by substantial evidence. None of the physicians whose reports are part of this record suggested that plaintiff's complaints of pain were exaggerated, or that there was no objective basis for her pain. Moreover, her treating physician and her treating surgeon each identified an objective basis for the pain plaintiff suffered. *fn1" The ALJ nowhere explains why he did not credit this testimony, particularly the testimony of the treating physician, Dr. James Nicholson, that plaintiff's surgical problems had resulted in disability and an inability to perform work. Tr. 17; tr. 244. The testimony of the treating physician is generally accorded special significance. Podedworny v. Harris, 745 F.2d at 217.

 The ALJ also discounted plaintiff's testimony about her pain in part because of her testimony that she engaged in painting ceramics, reading, and watching television. Tr. 19. Reliance on such testimony to rebut the testimony of a treating physician, however, constitutes "a basic error in the findings of fact." Smith v. Califano, 637 F.2d 968, 971 (3d Cir. 1981); see also id. ("Disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity.").

 In addition, the ALJ overlooked, or misstated, other important evidence. For example, the ALJ suggests that plaintiff's medication consisted of Extra Strength Tylenol (until December, 1984), and of Percocet six times per week (after December, 1984). In response to the ALJ's question about the frequency with which she takes Percocet, plaintiff stated:

 
Oh, I may take it maybe six times a week if needed. I try to avoid taking it as much as possible. Somedays I do have to take it three or four times a day.

 Tr. 41. In addition, plaintiff testified that she took Nalfon, a muscle relaxer prescribed by her treating physician, four times a day. Tr. 45; tr. 277. The ALJ also ignored plaintiff's testimony about the side effects of these drugs, and the impact the drugs had on her capacity to work. Plaintiff testified that the side effects of these drugs were drowsiness, sluggishness, and sometimes blurred vision, and that she had occasionally fallen ...


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