Norng v. Shalala, C94-4054.

• Decision Date: 03 March 1995
• Docket Number: No. C94-4054.,C94-4054.
• Citation: 885 F. Supp. 1199
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Neang NORNG, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant.

885 F. Supp. 1199

Neang NORNG, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant.

No. C94-4054.

United States District Court, N.D. Iowa, Western Division.

March 3, 1995.

COPYRIGHT MATERIAL OMITTED

Wilford L. Forker, Sioux City, IA, for Neang Norng.

Timothy T. Jarman, Asst. U.S. Atty., Sioux City, IA, for Donna Shalala.

ORDER REVERSING AND REMANDING THE CASE TO THE SECRETARY FOR FURTHER REVIEW

BENNETT, District Judge.

                                               TABLE OF CONTENTS
                  I. INTRODUCTION                                                                1202
                     A. Factual background                                                       1202
                     B. The court's jurisdictional basis                                         1207
                     C. Procedural background                                                    1208
                 II. ANALYSIS                                                                    1208
                     A. The "substantial evidence" standard                                      1208
                     B. The Polaski standard and subjective pain credibility determinations      1209
                     C. Relative burdens of proof                                                1210
                        1. The ALJ's analysis of Norng's subjective pain complaints              1210
                           a. Alleged inconsistencies regarding cooking and shopping             1211
                           b. Alleged discrepancies regarding Norng's motivation to work         1214
                           c. Alleged inconsistencies regarding Norng's pain on December 1
                                1992 and his pain on May 20, 1993                                1215
                           d. Alleged inconsistencies regarding Norng's pain on November 3
                                1992 and his pain on November 10, 1993                           1216
                        2. The credibility of Norng's son-in-law                                 1216
                        3. The ALJ's "sit and squirm" analysis                                   1219
                        4. The hypothetical questions                                            1221
                           a. Vocational analysis required                                       1221
                III. CONCLUSION                                                                  1223
                

The court has before it plaintiff's resisted appeal from the Secretary's denial of his application for Supplemental Security Income (SSI) benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. The case presents the issue of whether the Secretary had before her substantial evidence from which she could determine that the plaintiff was not disabled. For reasons stated below, the court is persuaded that the Secretary did not have substantial evidence justifying a denial of plaintiff's claim of disability and that this case must be reversed and remanded for further review.

I. INTRODUCTION

A. Factual background

The plaintiff in this case is Neang Norng, a 59 year old Sioux City, Iowa man who is five feet, six inches tall and who weighs approximately 135 pounds. (Tr. 49). Until 1990, Norng was a farmer in Cambodia. (Tr. 96). He has two years of Cambodian education and can "read and write a little bit" in that language, but can do neither in English. (Tr. 51). He does not have a driver's license. (Tr. 49). Norng receives financial assistance from the State of Iowa (more than $400/month in welfare and $327/month in food stamps) based on his wife's inability to work. (Tr. 50).

Norng began working at Iowa Beef Processors ("IBP"), a beef packing plant in Dakota City, Nebraska, in April 1990 and he worked there until November 1992. (Tr. 119). At IBP, Norng worked as a meat cutter, trimming fat from beef as it came down an assembly line (Tr. 53), then as a clean-up person, sweeping the trimmed fat from the floor with a broom and dust pan. (Tr. 71). His job involved eight hours of walking and standing, constant bending and no sitting. (Tr. 120).

On November 14, 1992, Norng was injured in an automobile accident. (Tr. 148-54). Norng had been in the front passenger's seat and was not wearing his seat belt when the car flipped over. (Tr. 153). As a result of injuries sustained in the accident, Norng was admitted at the Marian Health Center (hereinafter "Marian") in Sioux City where x-ray examinations revealed that he suffered fractures of his second, third, fifth, sixth and seventh ribs, as well as a small, left pleural effusion.¹ (Tr. 155, 161). He also suffered a contusion² of his right shoulder. (Tr. 175). After being released, Norng complained of residual back and chest pain, and was treated for that pain by Dr. Paul Johnson at Marian.

Two weeks after the accident, on November 17, 1992, Norng went to Marian for a check-up "complaining of lots of left chest pain." Id. At that time, Dr. Johnson stated that "(w)e evaluated his chest many times in the hospital and each times sic the x-rays simply showed the rib fractures. I still think that is what his pain is, that plus muscle aches." Id. In order to alleviate the pain, Dr. Johnson prescribed Motrin 400 mg. for 10 days as well as Tylenol # 3. Id.

On December 4, 1992, Norng had a follow-up visit with Dr. Johnson during which Norng stated that he was "still having a lot of rib pain" but was "a little bit better." Id. Dr. Johnson prescribed Advil and Tylenol # 3 (at a dosage of four per day) again, with one refill. Id. On December 28, 1992, Dr. Johnson wrote a letter to Wesley Drahozal of the Iowa Disability Determination Services Bureau in which he stated that Norng had spent seven days in the hospital recuperating from the auto accident and "on my last visit on 12/14/92, patient continued to have marked pain in his left rib cage. I plan to keep him off work until this is better.... At this time, patient really cannot do any work. Hopefully, this will change soon." (Tr. 176).

On January 7, 1993, Norng came in for another check-up and stated that he was better than he had been a month before, but was still experiencing anterior³ chest pain and did not feel that he could go back to work. (Tr. 175). In his report, Dr. Johnson stated that "(p)atient's interpreter did talk about the disability and how he needs to be on permanent disability and the fact that his wife can't work." Id. Dr. Johnson changed Norng's medications by ceasing to prescribe Tylenol # 3 and replacing it with Ibuprofen. Id. Dr. Johnson also told Norng not to go back to work for the next month, but to return to his office in four weeks for another check-up. Id.

On January 29, 1993, Norng came back to Dr. Johnson's office and was still complaining of "a lot of pain in his chest and also in his lower back." Id. Dr. Johnson concluded that Norng would have to undergo chest and back x-rays, and remain out of work. Id. Plaintiff's x-rays came back negative, except that there were signs of a pneumatocele⁴ in the upper portion of his lungs which the radiologists "think needs to be followed three months with a follow up x-ray." (Tr. 177). In his notes of Norng's February 18, 1993 check-up, Dr. Johnson wrote that despite the negative x-ray results

Patient none the less sic continues to complain of pain perispinal⁵ and in the left chest. This is very difficult to evaluate because of the language barrier. I really feel that there is nothing else to do with the chest pain. I do think that that will eventually improve.... Patient wanted to know about going to a chiropractor and I felt that that would be appropriate.

Id.

On February 19, 1993, Norng was seen by Dr. W.J. Wagner of the Wagner Chiropractic Clinic in Sioux City, Iowa. After full neurological, orthopedic and chiropractic examinations, Dr. Wagner diagnosed Norng as having a displaced lumbar disc, sciatica,⁶ low back syndrome, thoracic⁷ sprain/strain, thoracic radiculitis,⁸ pain in the thoracic spine, brachial⁹ radiculitis, headaches and cervicalgia.¹⁰ (Tr. 172). Dr. Wagner stated that Norng had "had a good response with chiropractic care," and estimated that "(i)t is very likely that there will be permanent impairment with soft tissue residuals in this area of the spine." Id. Dr. Wagner concluded that Norng should undergo "six to twelve" months of continued chiropractic therapy "before a competent estimation of any degree of disability can be made." Id.

Per Dr. Johnson's orders, Norng was still home from work on March 26, 1993. (Tr. 177). As of August 10, 1993, Norng was still complaining of chest and lower back pain and was referred to the Marian Back Clinic ("back clinic"). Id. On August 19, 1993, Norng was seen by Dr. Jay T. Strittholt of the back clinic. During Dr. Strittholt's physical examination, Norng stated that he had

some dizziness and headaches which seems sic to come on when the pain becomes worse. He notes that bending and lifting seems to increase the pain. He often times uses a hot shower for relief but states that it doesn't completely remove the feeling that he has. He describes it primarily with pain in the mid portion of his lumbar spine although he describes pain throughout the entire body. He notes some weakness when he tries to walk. Some numbness which seems to be mainly in the posterior calf and into the plantar aspect¹¹ of the foot, right greater than left. This seems to go onto the plantar surface. (Tr. 173). Dr. Strittholt examined Norng's back and found "areas of tenderness diffusely throughout the entire low back region. This seems to be worse right over the central portion of the mid lumbar." Id. Nonetheless, Dr. Strittholt found that Norng's flexion¹² and extension were "intact" with "only slight limitation." Id. Dr. Strittholt also determined that Norng's reflexes were "symmetrical" and that his lower back showed no bony abnormalities. Id. Dr. Strittholt stated that Norng would need to undergo a Magnetic Resonance Imaging ("MRI") examination of his lumbar area in order to determine whether there were any changes in that area of his back. Id.

The MRI examination was performed soon thereafter and on August 26, 1993 Dr....