The Medical Baseline and Excess Pain -- Murray v. Kijakazi

Keeping up with the cases as they come out is critical to the practice of law. That is true not only for the attorneys engaged in court practice, but also the attorneys and representatives that handle the hearings. Claimants do not win every case, nor do they win every case that they should win. Keeping up with precedent is critical. Keeping up with unpublished memoranda dispositions keep a finger on the pulse of the court and the presence of warring panels. 

Murray v. KIjakazi -- Murray litigated four errors. First, the ALJ was wrong in assessing whether Murray met or equaled the listing for spine impairment by finding no evidence of nerve root compression. The record showed that Murray did have cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. But the error was harmless because Murray did not have evidence of motor loss.

Second, the ALJ articulated clear and convincing reasons for rejecting Murray's testimony. The memorandum does not tell us what the ALJ said -- it is a memorandum, after all. The memorandum cites two cases for the proposition that drug-seeking behavior and part-time work are permissive factors.

Third, the ALJ did not err in considering treating physician opinion evidenced where Murray could not cite to an opinion. 

Fourth, the ALJ need not calculate absenteeism based on frequency of medical appointments in formulating residual functional capacity. 

Comment - the first issue should not have been raised alone but in the context of Murray's testimony (based on the very thin memorandum). Excess pain is the doctrine that the levels of pain or limitation exceed the medical expectation. The assessment of pain and limitation testimony evaluates the consistency of that testimony with the medical baseline. Here, we see that Murray has a degree of pain and limitation that exceeds what the ALJ drew as the medical baseline. But the ALJ drew the incorrect medical baseline. The ALJ did not include in the medical baseline the presence of cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. 

SSR 16-3p is the key. 

        This ruling clarifies how we consider:

• The intensity, persistence, and functionally limiting effects of symptoms,
• Objective medical evidence when evaluating symptoms,
• Other evidence when evaluating symptoms,
• The factors set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3),
• The extent to which an individual's symptoms affect his or her ability to perform work-related activities or function independently, appropriately, and effectively in an age-appropriate manner for a child with a title XVI disability claim, and
• Adjudication standards for evaluating symptoms in the sequential evaluation process.

Paragraph 1 addresses consideration of objective medical evidence. The court agreed that the ALJ did not consider the presence of cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. It is the most important factor -- it is the medical baseline. Either the briefing or the memorandum or both failed to include cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing.as the key factor in assessing Murray's testimony.

The memorandum cites Ford v. Saul for the proposition that the ALJ could consider part-time work in assessing pain and limitation testimony. That just is not what Ford says. Ford holds that the ALJ could consider occasional eight-hour shifts in assessing the treating physician's opinion that Ford could not maintain regular work attendance, deal with stress, and lacked pace -- all rated at poor. The ability to perform occasional eight-hour shifts is inconsistent with a poor ranking of ability. Ford relies on Drouin v. Sullivan for its holding. Drouin had worked part-time. Drouin found that the ALJ had stated clear and convincing reasons for rejecting allegations of severe, disabling pain because she did not lose jobs because of pain, did not have pain treatment, her impairments did not necessarily cause pain, the activities of daily living translated to work tasks, and Drouin did not exhibit pain during the hearing. Ford did not cite ongoing part-time work as a basis rejecting pain and limitation testimony. Drouin did not cite ongoing part-time work as a basis for rejecting pain and limitation testimony. 

The Act and the regulations, as well as well-founded public expectations, expect people with impairments to work as much as they can. The inability to engage in substantial gainful activity does not mean that the person cannot engage in lesser gainful activity. Impaired human beings are not relegated to vegetating in a dark room while the agency decides the disability claim. 

This dissection of the Murray memorandum is now longer than the memorandum. 

Rant mode

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Suggested Citation:

Lawrence Rohlfing, The Medical Baseline and Excess Pain -- Murray v. Kijakazi, California Social Security Attorney (May 11, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2008.