Whelan v. Frank J. Bisignano

Background

Jessica Whelan sought Social Security disability benefits. The opinion states that she has degenerative disc disease, neuropathy, radiculopathy, and obesity. She reported that she could not sit for more than ten minutes without severe pain or numbness. At a hearing before an administrative law judge (ALJ), she testified that pain caused her to spend 90 to 95 percent of a typical day lying down.

The ALJ found that Whelan’s impairments could reasonably be expected to cause her reported pain. The ALJ nevertheless discounted her pain testimony and found that she could sit for six hours during an eight-hour workday and perform her past work as a tax preparer.

Court’s analysis

The court applied the requirement that an ALJ give clear and convincing reasons for discounting a claimant’s pain testimony when the claimant’s impairments could reasonably produce the alleged symptoms.

First, the ALJ relied on spinal imaging that was mostly normal. The court explained that unremarkable imaging can be considered but cannot, by itself, support rejecting pain testimony.

Second, the ALJ relied on providers’ observations of normal lumbar-spine and joint movement and normal motor strength. The court found that the ALJ did not explain why those findings conflicted with Whelan’s testimony that she could not sit for more than ten minutes without severe pain or numbness. The court said the connection between normal movement or strength and the ability to sit without pain was not obvious, and the ALJ had not adequately explained it.

Third, the ALJ relied partly on Whelan’s failure to pursue physical therapy despite multiple referrals. The court found that this reasoning rested on a factual error because Whelan had completed ten physical-therapy sessions, reported progress, and requested additional therapy. The ALJ had overlooked that evidence.

Disposition

The court concluded that the ALJ’s second and third reasons were not convincing and that the first reason could not stand alone. The court held that the ALJ had not met the clear-and-convincing-reasons standard and remanded the case to the Social Security Commissioner for further proceedings. Because conflicts and ambiguities remained in the record, the court remanded rather than ordering payment of benefits. Judge Alex G. Tse issued the order.