Kershner

concurring in the result.

Although I concur in the result, I write separately to make it clear that I do not agree with many of the statements in the disposition, which are another example of retrial by appellate record review, with little deference to the trier of fact, the agency, or the district court.

A reader of the disposition might believe that Kershner presented a strong case for benefits; she did not. Every doctor, including the treating physician, appeared to be puzzled by her extensive complaints of pain because none of the objective medical evidence appears to come even close to supporting claims of that severity. The doctors state that her physical deficits are mild, or she is completely normal physically, or that her pain lacks a good anatomic explanation, or that there is no evidence of any operative condition. Two of the doctors at least alluded to the possibility of malingering, or of some psychiatric problem, 1 although a brief evaluation suggested that there was no major psychiatric disorder. Moreover, Kershner has become dependent on pain medications, which even her treating physician is concerned about.

Of course, while all of that can give one pause, it…

MEMORANDUM **

On December 2, 1990, 33-year-old Cynthia Kershner (“Kershner” or “claimant”) injured herself while trying to move a clothes dryer. Since then, she has sought treatment for severe and debilitating pain in her lower back and leg that persists twenty-four hours a day. She testified that she cannot bend or stoop or lift objects. Her mobility is limited, and she states she cannot remain in the same position, whether sitting, standing, or walking, for more than twenty minutes at a time.

Kershner applied for a period of disability, disability insurance benefits, and supplemental security income, which the Social Security Administration denied. She requested a hearing before an administrative law judge (“ALJ”), who found that Kershner had produced insufficient evidence of a determinable physical impairment, despite the fact that Kershner had submitted physicians’ records from dozens of office and hospital visits. The ALJ further found Kershner not credible.

The Appeals Council of the Social Security Administration denied Kershner’s request for review, and the district court granted summary judgment affirming the Commissioner of Social Security Administration’s…