finding that because the ALJ had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ’s observations concerning these questions are to be given great weight.
How later courts described this case
- finding that because the ALJ had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ’s observations concerning these questions are to be given great weight.
- recognizing that a claimant for disability benefits shoulders the burden of mustering substantial evidence to support his claim
- affirming ALJ's decision to discredit claimant's testimony as to pain that was out of proportion with objective evidence because the court was persuaded that ALJ considered the testimony
- upholding the ALJ’s finding that claimant’s pain was not as severe as he alleged based partly on the prescribed medications of record
Written by the judges who cited it.
The opinion
K.K. HALL, Circuit Judge,
dissenting:
I disagree with the majority’s conclusion that the AU did not ignore the medical evidence of pain in this case. In addition, I think that the majority has misinterpreted the law as to the AU’s personal observations. I, therefore, dissent.
Subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other “objective” medical evidence. E. g., Thorne v. Weinberger, 530 F.2d 580 (4th Cir.1976); Brandon v. Gardner, 377 F.2d 488 (4th Cir.1967). The majority asserts that the AU evaluated Shively’s claims of severe, debilitating pain but decided to discredit his testimony. Of course, I agree that “[bjecause the [AU] had the opportunity to observe the demeanor and to determine the credibility of the claimant, the AU’s observations concerning those questions are to be given great weight.” At 989. In my view, however, that statement is inapplicable to this case because the AU did not consider the credibility of Shively’s claims of disabling pain. Rather, the AU merely assumed that claimant’s pain was not “so severe and intractable as to prevent him from engaging in any substantial gainful activity.” The plain language of the AU’s decision reveals that he discounted Shively’s claims of disabling pain because they were unsupported by objective evidence and because of his personal observations made during the hearing. 1 This was error.
Shively testified he suffered from severe and debilitating back pain. He stated that the pain was located around his belt line and radiated through his neck, shoulders, hips and legs. He described the pain as sharp, causing him “almost [to] go in two.” He said he was unable to sit too long at a time, and, in fact, he had to get up and stand during part of one administrative hearing, which lasted one hour and nineteen minutes. Shively also testified that the pain occurs at least five days in a week, or more often, and that at times it interferes with his ability to wash his face. He said he cannot tie his shoes and needs help taking his pants on and off. Shively further stated he took up- to eight extra-strength Datril 500 or six to nine extra-strength Excedrin daily for pain. 2 He said that because of the pain, he is unable to turn his head and, consequently, does not *992 drive. Claimant’s wife corroborated his testimony, and their testimony was uncontradicted.
Moreover, although the AU found, and the majority agreed, that there was little in the evidence to support any musculoskeletal impairment, the medical evidence unequivocally established that the claimant suffers from a back impairment. The x-rays of Shively’s lumbosacral spine clearly revealed osteoarthritic changes, spurring, and narrowing of the C6-C7 interspace. Shively’s treating physician said that the neurological findings were suggestive of “herniated disc of the lumbar spine,” and his conclusion is not contradicted. I can only conclude that neither the AU nor the majority understands the x-ray and neurological evidence in this case.
In an effort to support their decision, both the AU and the majority rely on a 1978 psychological report. That report contains the comment of a clinical-psychologist that “Shively stated that he is unable to sit longer than forty-minutes maximum at a time; however, he was able to sit for over an hour without complaint of or noticeable discomfort while being tested.” All of the medical doctors, however, who examined Shively for lumbar motion, found that he had difficulty bending forward, and none of these doctors suggested that Shively's complaints of pain were not real. 3
To the contrary, on examination, some of the physicians noted that Shively was tender to palpitation, and claimant’s treating physician reported that Shively was “quite swollen and tender over the mid dorsal spine to palpation. There is an area of about 3 X 5 cm at the mid dorsum which is swollen and red and warm to touch____” An orthopedic surgeon further noted that Shively was “quite uncomfortable. He walked with some stiffness of the body and carried his head and neck in a guarded fashion. He was seated and arose from the sitting position with the aid. of his hand,” The record thus contains ample evidence that Shively suffers from pain; yet, the AU failed to make any findings concerning the degree of pain which claimant suffered. 4
As for the AU’s statement that Shively did not show much sign of pain at either of the supplemental hearings, I conclude that the AU erred as a matter of law in rejecting Shively’s otherwise relevant testimony on pain and suffering simply because of the claimant’s failure to “sit and squirm.” Tyler v. Weinberger, 409 F.Supp. 776, 789 (E.D.Va.1976). As. we held in Brandon , “pain unaccompanied by any objectively observable symptoms which is, nevertheless, real to the sufferer and so intense to be disabling will support a claim for disability benefits.” Id., 377 F.2d 488, 490 . The AU ignored Shively’s subjective -evidence of pain because of what he believed to be weak objective findings and because of his observations made during the supplemental hearings. This contradicts our holding in Thorne that subjective evidence of pain “when found to exist must be considered seriously.” Id., 530 F.2d 580, 583 (4th Cir. 1976).
As the majority acknowledges, the severity of Shively’s pain was “central” to the *993 AD’s decision that Shively was not disabled. The vocational evidence revealed that no jobs existed in the national economy for someone with Shively’s impairments who had the additional limitation of severe pain. Based upon all of the evidence, I conclude that the AU failed to evaluate the. severity of Shively’s back pain. Accordingly, I would reverse the district court.
. The pertinent language from the AU’s decision reads as follows:
[Shively] didn't show much sign of pain at either of the supplemental hearings. The entire record considered together indicates that a desire for secondary gain is a significant part of the claimant’s pain syndrome. He probably does have a significant amount of pain, but he appeared to maximize it at the hearings. To the extent that his testimony would indicate that his pain is so severe and intractable as to prevent him from engaging in any substantial gainful activity, the Administrative Law Judge finds it not to be credible. If his complaints of pain were completely disregarded, there would be very little in the evidence to support any significant musculoskeletal impairment. Neither the x-rays nor the neurological findings support it, aside from the claimant’s symptoms.
. Both the ALJ and the majority belittle the medical treatment of Shively’s pain, but they are not medical experts. The undisputed evidence is that Shively is taking at least 11 different medications. I would defer to the judgment of Shively’s doctors for the proper combination of drugs for Shively’s system.
I also think that the AU and the majority ignore the realities of life confronting a claimant in Shively’s position. Shively testified that when his doctor asked him what pain medication he was taking, Shively told his doctor that the non-prescription medication was “good enough.” Shively explained that "the doctor’s prescription is just pretty darn expensive, that [he couldn’t] afford very expensive medicine____ [T]here’s no income.”
. Furthermore, under the circumstances of this case, Shively should be afforded substantial credibility as a witness to his own work capabilities. Vitek v. Finch, 438 F.2d 1157, 1159 (4th Cir.1971). He worked for 23 years as a heavy equipment mechanic, earning substantial wages. He injured his back in 1957 and returned to work. He injured his back a second time in the 1960’s and returned to work. Unfortunately, when he injured his back a third time in 1977, he was unable to return to work. On these facts, I can see absolutely no basis whatsoever for the ALJ’s conclusion "that a desire for secondary gain is a significant part of the claimant’s pain syndrome.”
. At page 6, the majority quotes from the ALJ's decision out of context when it says that the ALJ found that Shively "probably does have a significant amount of pain.” In concluding that Shively is not disabled because of back pain, the ALJ reasoned first that: "[Shively] didn't show much sign of pain at either of the supplemental hearings” and two sentences later the ALJ says that Shively "probably does have a significant amount of pain, but he appeared to maximize it at the hearing.” I find this logic to be contradictory. In sum, the ALJ found that Shively has no pain.