Court of Appeals Issues Guidance on Credibility

June 14, 2010

Author(s):  Patrick Manning. Albany Law School Summer Intern

In two recent summary orders, the Court of Appeals for the Second Circuit has provided guidance for the evaluation of credibility in disability claims.  As advocates are aware, credibility determinations can often be the linchpin of cases, and all too often, Administrative Law Judges (ALJs) make these determinations somewhat cavalierly, to say the least.  The decisions in Meadors v. Astrue, 2010 WL 1048824 (2d Cir. March 23, 2010) and Genier v. Astrue, ---F.3d---, 2010 WL 2105081 (2d Cir. May 27, 2010) should prove helpful to advocates struggling with credibility issues.

In a not so summary summary order, the Court in Meadors remanded the claim for application of the correct standard for assessing subjective complaints of pain.  The Court, citing 20 C.F.R. §404.1529(c)(4) and Social Security Ruling (SSR) 96-7p, reiterated that the ALJ must follow a two step process in evaluating contentions of pain.  First, the ALJ must determine whether the claimant suffers from a medically determinable impairment that could reasonably be expected to the produce the pain alleged.  The ALJ must then evaluate the intensity and persistence of the symptoms considering all the available evidence. To the extent that the contentions of pain are not substantiated by objective medical evidence, the ALJ must then engage in a credibility analysis. That analysis involves a review of the seven factors set forth in 20 C.F.R. §404.1529(c)(3)(i)-(iv).  2010 WL 1048824 *3.

The Court held that the ALJ failed to follow this two-step inquiry.  Instead of considering the threshold question of whether Meadors had demonstrated an impairment capable of producing the pain alleged, the ALJ erroneously proceeded directly to a credibility determination. The ALJ’s failure to apply the correct legal standard precluded the Court from conducting a meaningful review of his determination. In other words, the Court was unable to discern whether the ALJ found that Meadors’s contentions were not consistent with her lumbar radiculopathy versus whether her contentions were consistent, but the intensity and persistence were unsubstantiated and her allegations were not credible. 

The ALJ simply noted in passing that the plaintiff’s complaints of disabling back and leg pain were not well supported by substantial evidence.  The Court held that by requiring that the claimant’s allegations of pain be well supported by the medical evidence, “the ALJ imposed an undue burden on the Appellant at the credibility stage.” Id at *4.  The claimant need not produce evidence confirming the extent of the pain but rather medical evidence of an impairment that could reasonably be expected to produce the pain. 

The Court remanded the claim for the ALJ to make an express finding as to whether Meadors’s “laundry list of back ailments” could be expected to produce the pain alleged, and if so, to evaluate the intensity and persistence of the pain and then and only then undertake a credibility analysis.  The Court noted in a footnote that the ALJ must take into consideration all the factors set forth in 20 C.F.R. §404.1529(c)(3), rather than overly focusing, as he did, on the claimant’s daily activities. Additionally, the Court recognized that the “ALJ’s characterization of those activities was less than fully accurate.” According to the Court, the ALJ failed to acknowledge the help the plaintiff needed with performing these activities.  The Court emphasized that while the ALJ must assess credibility of testimony, he cannot select only evidence that supports his conclusions, nor may he mischaracterize evidence or afford too much weight to a single factor.

As if that wasn’t good enough, the Court also ruled that the ALJ had failed to accord proper weight to the opinion of the claimant’s treating physician, deferring instead to evidence from specialists.  The Court specifically found that Ms. Meadors’s primary care physician would have necessarily reviewed the findings and opinions of the specialists in formulating his opinion.  The Court also ruled that none of the objective evidence relied upon by the ALJ undermined the opinion of the treating source.  It vacated the portions of the ALJ’s order giving little weight to the primary care physician, and remanded with the instruction that the ALJ afford his opinion proper deference. 

Kudos to Jaya Shurtliff of Olinsky & Shurtliff in Syracuse for this great decision. Remember that although a summary order and thus not precedential, this can nonetheless be cited in future cases.

Genier v. Astrue, on the other hand, is a reported decision that will serve as precedent.  The Court of Appeals similarly remanded the claim for further proceedings where the ALJ’s decision to deny benefits was based on a misreading of the evidence and a misunderstanding of the claimant’s testimony.  The claimant, who suffered from morbid obesity and related impairments including mobility and breathing problems, sleep apnea, high blood pressure, and back pain, alleged disability in August 2005 when he was 27 years old.

The Administrative Law Judge (ALJ) stated that while these impairments could reasonably be expected to produce the symptoms alleged, he found that the claimant’s statements were inconsistent with the record and thus not credible.  The ALJ found that the claimant, in a questionnaire for the Division of Disability Determinations (DDD) indicated that he was able to care for his dogs, vacuum, do dishes, cook, and do laundry.  The claimant in fact, however, indicated that he attempted to accomplish these tasks, but required assistance of a parent for each due to severe fatigue and lack of mobility.

The ALJ considered the assertions of pain and fatigue, but gave them no credit, finding them to be contrary to evidence of record, including the claimant’s reports of his daily activities.

At the time of the hearing the claimant had reduced his weight from 494 pounds to 327 pounds after successful Bariatric surgery, and testified that while he continued to suffer from sleep apnea, high blood pressure, and back pain, his symptoms had improved significantly.  He also testified that while he continued to suffer from knee pain at the time of the hearing, he was able to stand or walk for 15 minutes at a time, regained the ability to climb stairs, and was sometimes able to clean, cook, and do other outdoor chores, including shoveling and plowing.

From this testimony the ALJ concluded that while the claimant’s obesity and sleep apnea constituted severe impairments, they did not meet a listing.  The ALJ also found that the claimant retained the residual functional capacity (RFC) to perform a wide range of medium work, could lift up to thirty pounds occasionally and up to twenty pounds regularly, and was able to sit, stand, and walk for six hours in an eight hour workday.  He determined that the claimant was capable of substantial gainful activity and thus not disabled under the Medical Vocational Guidelines (“Grid Rules”).

The Court of Appeals held that the ALJ’s decision was based on a serious misunderstanding of the claimant’s testimony, and therefore did not comply with the requirement to consider all the evidence of the record, including the claimant’s testimony and other statements regarding daily activities.  The claimant’s testimony relating to his ability to perform household chores at the time of the hearing did not pertain to the time when he completed the questionnaire, nor to any time prior to his surgery.

The Court held that the claimant’s testimony did not contradict his assertions that he had been impaired. Since the ALJ’s adverse credibility finding, crucial to the rejection of the claim, was based on a misreading of the evidence, the court held that it contradicted the obligations to consider all relevant medical and other evidence, citing 20 C.F.R §404.1545(a)(3).  The court vacated the judgment of the district court and remanded the case for further proceedings.

Congratulations to Mark Schneider, a private attorney from Plattsburgh, on a fine victory in this case. Thanks to Albany Law School summer intern Patrick Manning for his excellent summary of this decision.