Santos v. District of Columbia Department of Employment Services

BELSON, Associate Judge,

concurring:

I join in the court’s opinion, and write separately to make a few additional observations about the testimony of Dr. Gunther and the findings the Hearing Examiner did base, and could have based, on that testimony.

As the court’s opinion explains, the Hearing Examiner found that Santos lost her credibility on October 29, 1984. He based that finding on Dr. Gunther’s deposition testimony about the manner in which Ms. Santos was able to enter a car unaided, which Dr. Gunther observed from a distance, as contrasted with Santos’ professed inability to move without assistance in his examining room. I agree that Dr. Gunther’s long distance observation was insufficient to bear the weight the Hearing Examiner assigned it.

There was, however, much more in Dr. Gunther’s testimony concerning the events of October 29, 1984, that the Hearing Examiner could have used, but did not, to conclude that Ms. Santos was not credible. Dr. Gunther reported that Ms. Santos was quite uncooperative during the examination, specifically that she would not move any muscles for him although “obviously they were functioning.” He based this opinion on the fact that she claimed doing most anything hurt her back terribly, and that all her muscles seemed weak upon testing. Yet, when he tested her reflexes with a rubber hammer, she demonstrated normal reflexes in both arms and legs. For this reason, Gunther “felt she was not weak.” Dr. Gunther acknowledges that he was not “necessarily” able to make any determination with respect to her complaints based upon testing those reflexes. But the fact that she acted weak upon testing (she would not move any muscle for him), even though he concluded she was in fact not weak, bears upon Santos’ credibility.

Similarly, Dr. Gunther conducted a straight leg raising test. He could straight raise each of Ms. Santos’ legs to 90 degrees, but she said she had pain on the left side at 60 degrees. That constitutes a “subjectively positive straight leg raising test.” According to Dr. Gunther,

[sjometimes when you bring the leg up you can’t get it up further and it’s obvious that it’s causing a lot of pain, sometimes it’s not very obvious and you are relying on what the patient says.
I was going to say it's somewhat suspicious when you can go to 90 degrees although the patient says it hurts at some point.

Also, Gunther made a written report stating that the “[rjange of motion in her neck was obviously not painful and was unimpeded while we talked, but once I made it clear that I was examining it she did not turn it very well and claimed to be limited by pain to 45 degrees rotation each way.” Again, this reflects on Santos’ credibility.

The totality of Dr. Gunther’s observations affecting Santos’ credibility as of October 29, 1984, if credited by the Hearing Examiner, was sufficient in my view to support a finding that her complaints were no longer reliable as of that date. As a ground for finding that the claimant’s disability had terminated as of October 29, 1984, this is conceptually separate from Dr. Gunther’s medical opinion itself. As the court’s opinion notes, ante at 11, the Hearing Examiner did not base his decision regarding the termination date of benefits on Dr. Gunther’s medical opinion. The Hearing Examiner has not yet weighed that opinion against the contrary opinion of Dr. Dennis. It is not for this court, but rather for the Hearing Examiner, to weigh the evidence surrounding both of these aspects of Santos’ claim and make the findings of fact he deems appropriate.