Norng v. Shalala (885 F. Supp. 1199, 1995)

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 plaintiffs 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 plaintiffs claim of disability and that this ease 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. 19). 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. 1,9). 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. 118-51). Norng had been in the front passenger’s seat and was not wearing his seat belt when the car flipped over. (Tr. 158). 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. (Tr. 155, 161). He also suffered a contusion 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 followup 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 anterior 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. Plaintiffs x-rays came back negative, except that there were signs of a pneumatocele 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 Nomg’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 perispinal 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, low back syndrome, thoracic sprain/strain, thoracic radiculitis, pain in the thoracic spine, brachial radiculitis, headaches and cervicalgia. (TV. 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. (TV. 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 aspect of the foot, right greater than left. This seems to go onto the plantar surface.

(TV. 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 flex-ion 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. Strittholt stated that it “showed no evidence of significant abnormality” (TV. 171) but Norng nonetheless continued to complain of pain in his right lower back. Id. Accordingly, Dr. Strittholt prescribed Motrin 800 mg. and physical therapy. Id. Just as Dr. Johnson had concluded that he didn’t think there was a whole lot which could be done to alleviate Norng’s pain, Dr. Strittholt similarly concluded that, aside from the pain medication and physical therapy, “I don’t really feel that there is anything else to offer him unless we could get a more accurate history, which I think is impossible at this stage. Will see him back here again should anything change.” Id.

On September 8, 1993, Dr. Johnson wrote a letter to Norng’s attorney, Wil L. Forker, in which he reviewed Nomg’s back pain history and noted that during the months which followed the automobile accident, Norng “has continued to have chronic pain in his left chest. This is in the area of his fractures. By now his fractures should have healed. Nonetheless, he continues to have pain.” (Tr. 178). Dr. Johnson also stated that he had recently attempted to treat Norng’s pain complaints with steroid and Marcaine injections and concluded that “(a)s far as the patient’s overall prognosis, I would have felt that his pain should have improved by now. As such, I have no opinion on how much longer his chest pain will continue.” Id.

Norng has not worked since the automobile accident and he testified at a January 14, 1994 hearing before Administrative Law Judge Bruce Mazzarella (“the ALJ”) that his back pain prevented him from working. (Tr. 54-55). He also testified that he is not working because he is caring for his wife. (Tr. 65). Norng stated that his pain is constant, though it is helped “a little bit” by his medications. (Tr. 57).

Norng testified that he could only sit or stand for less than 30 minutes at a time, could only walk a distance of one and a half blocks and could only lift between two and three pounds at a time because of his shoulder pain. (Tr. 59). In terms of every day activities, Norng testified that he has no hobbies (Tr. 62), so he spends most of his time during the day reclining on the sofa watching television (Tr. 62), watching Cambodian videos (Tr. 62-68) and listening to Cambodian music. (Tr. 66). Norng also testified that he does “a little bit” of cooking (Tr. 61) such as barbecuing or making sour sauce, that he goes grocery shopping (Tr. 62) and that he does some house cleaning (Tr. 61), but that he does not do laundry or other house work. Id.

In addition to testifying in his own behalf, Norng also had his son-in-law, Choeun Kan, testify as a witness at the hearing. Kan testified that he generally sees his father-in-law on the weekends and one time a week but that, depending on his work schedule, he may see Norng more often than that. (Tr. 78-74 )• Kan testified that Norng complains of pain in the ribs, the lower back and the right shoulder. (Tr. 75). Kan also testified that his father-in-law “cannot sit too long and sometimes just lay[s] down and when he wake[s] up he [finds it] too hard to wake up____” Id. Kan estimated that Norng can only sit for a maximum of 15 to 20 minutes at a time. (Tr. 76).

Kan also testified that he has seen Norng cook, but that he has not seen Norng clean the house. (Tr. 77). Further, Kan testified that he takes Norng shopping, and that when Norng shops he will only “buy a little bit and take it back home.” (Tr. 78). Kan explained that Norng cannot do large-scale shopping, such as an entire week’s worth of grocery shopping, at one time because “you know the big, something like Saturday, Sunday, there are a lot of people, he cannot walk too long, we just get out in the morning and it’s not too many people, just buy a little bit, and just go down to like the express lane or something like that.” (Tr. 79). Kan explained that Norng cannot wait in long lines because “he cannot wait too long, like his back hurt[s] and he cannot stand too long, you know, just waiting for the line____ Because his back and his body hurt.” (Tr. 80).

Sandra Trudeau testified at the hearing as a vocational expert. Trudeau testified that Norng is considered under the Code of Federal Regulations to be a person of “advanced age.” (Tr. 86). She also testified that he is illiterate in English and that he has a marginal Cambodian education. Id. Trudeau testified that Norng’s meat cutting job is in the exertional category of “medium” under the regulations and that the clean-up job is within the “light” exertional level category. Both jobs, she said, were unskilled positions under the regulations. (Tr. 87). As well, Trudeau testified that Nomg’s work as a farmer in Cambodia would be considered under the regulations to be “generally” heavy and unskilled. Id.

When asked to assume that Norng’s condition was as he described in his testimony, Trudeau stated that he could no longer return to any of his past relevant work. (Tr. 88). Specifically, the following exchange occurred between the ALJ and Trudeau:

Q. All right, I want you to assume some things for me, okay. I want you to assume, based upon the face value of the claimant’s testimony and the testimony of his witness, that the claimant has all the impairments that he’s testified to, and tells us that he can sit for less than 30 minutes, stand for less than 30 minutes, can’t alternate sitting and standing for eight hours, walk up to one half block, lift up to two to three pounds of, and although I didn’t ask him, I assume that he could carry that two to three pounds. Based upon the exertional limitations that he’s expressed could he return to any of his past relevant work, either as a meat trimmer or as a farmer?

A. No, he could not.

Q. And the simple reason for that would be what?

A. That he would need to stand longer than 30 minutes at a time, and he would not be able to alternate sit or standing, and the lifting requirements. He would need to lift more than three pounds.

Q. Could he do any other work in the national economy based upon his expressed limitations?

A. No, he could not.

(TV. 87-88).

After receiving that answer, the ALJ changed the hypothetical as follows:

Q. I want you to assume a claimant with the profile that you’ve given us. And assume I do find that he has some of the impairments that he’s testified to, but not necessarily all of the symptoms and limitations that he’s expressed. I want you to assume within twelve months of his onset I would find that he could sit without restriction, stand and walk without restriction, lift up to 50 pounds on an occasional basis and carry up to 50 pounds on an occasional basis. I want you to assume that he has some residual back discomfort, and rib discomfort, and should not engage in constant cycles of bending beyond 45 degrees. I want you to assume that he does have some complaints of dizziness with postural changes from sitting to standing, and should not engage in frequent cycles of changing of posture from sitting to standing. I want you to assume that although he complains of constant pain I would expect no more than a moderate interference in the performance of complex or varied tasks, with no impediment on simple routine and repetitive tasks. Based upon that hypothetical would he be able to return to either his work as a meat trimmer or a farmer?

A. Yes, he would be able to return to his job as a meat trimmer.

Q. Both as performed in the national economy and as he performed it?

A. Yes.

Q. And if I lowered his restrictions to 25 pounds of lifting and carrying, would be able to return to any of his past relevant work as he performed it, or as performed in the national economy?

A. Yes.

Q. What could be he do?

A. He would be able to perform the meat trimmer.

Q. As he performed it or as performed in the national economy at 25 pounds?

A. As performed in the national economy.

Q. Because I thought you told me that was medium as performed in the national economy?

A. Yes it is.

Q. But it’s still within 25 pounds?

A. Yes.

‡ ‡ ♦ Hí

Q. Okay. I’m going to give you another hypothetical. And I want you to assume sitting without restriction, standing and walking without restriction, lifting and carrying up to 25 pounds. Assume the same restriction with regard to back, and that he shouldn’t engage in constant cycles of bending beyond 45 degrees, should not engage in frequent changes of posture from sitting to standing. I want you to assume that he also has some residual right dominant arm and shoulder diffieulty, and should not engage in constant reaching above his shoulder level. Would he still be able to do the meat trimmer’s job?

A. Yes.

(TV. 88-90).

In his decision, the ALJ determined that Norng is not “disabled” under the Social Security Act. The ALJ based his determination on the fact that Norng’s testimony was not credible, that Nomg’s son-in-law’s testimony was not credible, that the medical reports in the record showed no objective basis for Norng’s pain complaints and that the medical report submitted by Norng’s chiropractor, Dr. Wagner, was not persuasive. The ALJ therefore concluded that Norng retains the residual functional capacity to return to his meat trimmer job. (Tr. 26). With this factual background in mind, the court will now review its jurisdictional basis for hearing this case, the procedural background of this case, then discuss the ALJ’s ruling.

B. The court’s jurisdictional basis

This is a proceeding under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. Section 1383(c)(3) of Title 42 of the United States Code provides that “(t)he final determination of the Secretary after a hearing ... shall be subject to judicial review as provided in section 405(g) of this title____” 42 U.S.C. § 1383(c)(3) pocket part 1994). In pertinent part, 42 U.S.C. § 405(g) states the following:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia____ The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive____ The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions____

42 U.S.C. § 405(g) (pocket part 1994).

Accordingly, the court has the power to remand or reverse the ALJ’s decision, and “(w)here the record overwhelmingly supports a disability finding and remand would merely delay the receipt of benefits to which plaintiff is entitled, reversal is appropriate.” Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir.1992) (citing Fowler v. Bowen, 866 F.2d 249, 253 (8th Cir.1989)); see also Simmons v. R.R. Retirement Bd., 982 F.2d 49, 57 (2d Cir.1992) (citing Thompson, 957 F.2d at 614; Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980) (reversal proper where remand “would serve no purpose”)); Gavin v. Heckler, 811 F.2d 1195,1202 (8th Cir.1987) (reversal proper where “remand would be a futile gesture”). The court cannot, however, grant a remand merely because it is unhappy -with the ALJ’s result, Melkonyan v. Sullivan, 501 U.S. 89, 100-01, 111 S.Ct. 2157, 2164-65, 115 L.Ed.2d 78 (1991), or ‘“because substantial evidence would have supported an opposite decision.’ ” Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir.1994) (quoting Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993) which, in turn, quoted Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). Further, in order to remand a case, such as this one, which falls under sentence four of 42 U.S.C. § 405(g), the court must either affirm, modify or reverse the decision so that it will be considered a final judgment. Melkonyan, 501 U.S. at 102, 111 S.Ct. at 2165; see also Shalala v. Schaefer, — U.S.-,-, 113 S.Ct. 2625, 2629, 125 L.Ed.2d 239 (1993). With this jurisdictional basis in mind, the court now turns to the procedural history of this case and the standards to be applied upon review.

C. Procedural background

Norng filed his application for SSI benefits on December 1, 1992. (Tr. 96-99). The application was denied initially on January 19, 1993 (Tr. 100-02) and after reconsideration on July 21, 1993. (Tr. 105-07; 141-42). An administrative hearing was held in this matter on January 14, 1994, after which the ALJ ruled, on February 25,1994, that Norng was not disabled and therefore not entitled to SSI benefits. (Tr. 26). On March 16, 1994, Norng requested a review of the ALJ’s decision from the Social Security Administration Appeals Council. (Tr. 5). On June 3, 1994, the Appeals Council denied Norng’s request and stated that “the Administrative Law Judge’s decision stands as the final decision of the Secretary in your case.” (Tr. 8). Since the Appeals Council’s June 3, 1994 letter stated that it represented the final determination of the Secretary, and since Norng filed this action on June 30, 1994, there is no dispute that it was timely filed with this court. Therefore, Norng is entitled to a review of his case under 42 U.S.C. § 405(g), supra. The court will accordingly commence to review the Secretary’s decision in accordance with § 405(g) by determining whether that decision was supported by substantial evidence.

II. ANALYSIS

A. The “substantial evidence” standard

The Eighth Circuit’s standard of review in Social Security cases is well-established. This Court must affirm the findings of the ALJ if they are supported by substantial evidence in the record as a whole. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir.1994) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)); Nelson v. Sullivan, 966 F.2d 363, 366, n. 6 (8th Cir.1992) (citing McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir.1983)); 42 U.S.C. § 405(g). “‘Substantial evidence is less than a preponderance’...” Orrick v. Sullivan, 966 F.2d 368, 371 (8th Cir.1992) (quoting Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992)), but “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Perales, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); see also Smith, 31 F.3d at 717 (citing Ghant v. Bowen, 930 F.2d 633, 637 (8th Cir.1991)). Put another way, “(t)he standard is ‘something less than the weight of the evidence and it allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the Secretary may decide to grant or deny benefits without being subject to reversal on appeal.’ ” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.1994) (quoting Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir.1991)).

When evaluating the evidence in an appeal from the Secretary’s denial of benefits, the court must perform a balancing test, evaluating any contradictory evidence. Sobania v. Secretary of HHS, 879 F.2d 441, 444 (8th Cir.1989) (citing Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.1987)). “(I)f it is possible to draw two inconsistent positions from the evidence and one of those positions represents the agency’s findings, [this court] must affirm the [Secretary’s] decision.” Or-rick, 966 F.2d at 371. Even if this court “might have weighed the evidence differently, [it] may not reverse the Secretary’s decision when there is enough evidence in the record to support either outcome.” Culbertson, 30 F.3d at 939 (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992)). In other words, the court “must consider evidence that detracts from the Secretary’s decision as well as evidence that supports it. [The court] may not, however, reverse the Secretary’s decision merely because substantial evidence also would have supported an opposite decision.” Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir.1995) (citing Smith, 987 F.2d at 1373-74 (8th Cir.1993)).

“Review under this standard is not a rubber stamp for the ALJ, however.” Griffon v. Bowen, 856 F.2d 1150, 1153 (8th Cir. 1988) (citing McMillian, 697 F.2d at 220). The Court must at all times keep in mind that prior to granting or denying benefits, the ALJ has a duty to fully and fairly develop the record. This mandate was recently summarized as follows:

The Secretary acknowledges that it is her “ ‘duty to develop the record fully and fairly, even if ... the claimant is represented by counsel.’ ” Boyd v. Sullivan, 960 F.2d 733, 736 .(8th Cir.1992) (quoting Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.1983)). This is so because an administrative hearing is not an adversarial proceeding. Henrie v. Dep’t of Health & Human Serv., 13 F.3d 359, 361 (10th Cir. 1993). “[T]he goals of the Secretary and the advocates should be the same: that deserving claimants who apply for benefits receive justice.” Sears v. Bowen, 840 F.2d 394, 402 (7th Cir.1988). Moreover, “[a]n adequate hearing is indispensable because a reviewing court may consider only the Secretary’s final decision [and] the evidence in the administrative transcript on which the decision was based.”

Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994) (quoting Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir.1992) (per curiam)). With these standards in mind, the court will now turn to the ALJ’s evaluation of Nomg’s case.

B. The Polaski standard and subjective pain credibility determinations

“An ALJ’s credibility determinations are, of course, entitled to considerable weight.” Young v. Secretary of Health and Human Servs., 957 F.2d 386, 392 (7th Cir. 1992) (citing Cheshire v. Bowen, 831 F.2d 687, 690 (7th Cir.1987)); see also Gooch v. Secretary of Health and Human Servs., 833 F.2d 589, 592 (6th Cir.1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1050, 98 L.Ed.2d 1012 (1988); Hardaway v. Secretary of Health and Human Servs., 823 F.2d 922, 928 (6th Cir.1987). Nonetheless, in the Eighth Circuit, an ALJ may not discredit allegations of pain merely because of a lack of objective evidence; instead, he may discredit subjective complaints of pain only if they are inconsistent with the record as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.1994); see also Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir.1990) (citing Polaski v. Heckler, 739 F.2d 1320 (order), supplemented, 751 F.2d 943 (8th Cir.1984), vacated, 476 U.S. 1167,106 S.Ct. 2885, 90 L.Ed.2d 974 adhered to on remand, 804 F.2d 456 (8th Cir.1986), cert, denied, 482 U.S. 927, 107 S.Ct. 3211, 96 L.Ed.2d 698 (1987)). Under Polaski,

The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as:

1) the claimant’s daily activities;

2) the duration, frequency and intensity of the pain;

3) precipitating and aggravating factors;

4) dosage, effectiveness and side effects of medication;

5) functional restrictions.

Polaski, 739 F.2d at 1321-22. In other words, under Polaski, an ALJ is free to doubt a claimant’s subjective pain complaints. However, he must support a denial of benefits based on a consideration of the above-mentioned five factors. Indeed, the Polaski court stated that “(t)he adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.” Id. (emphasis in original).

As the Tenth Circuit has stated, “(t)o establish disabling pain without explicit confirmation of treating physicians may be difficult. Nonetheless, the claimant is entitled to have his nonmedical objective and subjective testimony evaluated by the ALJ and weighed alongside the medical evidence.” Huston v. Bowen, 838 F.2d 1125, 1131 (10th Cir.1988) (citing Luna v. Bowen, 834 F.2d 161, 164 (10th Cir.1987)); Cotton v. Bowen, 799 F.2d 1403,1407 (9th Cir.1986); Avery v. Secretary of Health and Human Servs., 797 F.2d 19, 21 (1st Cir.1986); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.1986); Green v. Schweiker, 749 F.2d 1066,1070 (3d Cir.1984).

C. Relative burdens of proof

A “disability” is defined in 42 U.S.C. § 423(d)(1)(A) as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” A disability is found when a claimant is “not only unable to do his previous work but cannot, considering ... his age, education and work experience, engage in any other kind of substantial gainful work which exists in [significant numbers in] the national economy ... either in the region in which such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A) (1994). “To establish a disability claim, the claimant bears the initial burden of proof to show that he is unable to perform his past relevant work.” Frankl, 47 F.3d at 937 (citing Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir.1993)); see also Roth v. Shalala, 45 F.3d 279, 282 (8th Cir.1995) (citing Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992)); 20 C.F.R. § 404.1512(c). “If met, the burden of proof then shifts to the Secretary to demonstrate that the claimant retains the physical residual functional capacity (RFC) to perform a significant number- of other jobs in the national economy that are consistent with the claimant’s impairments and vocational factors such as age, education, and work experience.” Frankl, 47 F.3d at 937 (citing McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.1982) (en banc). See also Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir.1994) (citing Evans v. Shalala, 21 F.3d 832, 835 (8th Cir.1994)); Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir.1994).

In the sequential evaluation process, where a claimant demonstrates that he does not have the residual functional capacity to perform his past relevant work, the burden shifts to the Secretary “to show that there are other jobs in significant numbers in the economy which [the claimant] can perform consistent with his medically determinable impairments, functional limitations, age, education and work experience.” Smith v. Shalala, 31 F.3d at 717 (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991); 20 C.F.R. §§ 404.1520(f), 416.920(f)). See also Hajek, 30 F.3d at 93 (citing Evans, 21 F.3d at 835); Reed v. Sullivan, 988 F.2d 812, 814 (8th Cir.1993)); Walker v. Shalala, 993 F.2d 630, 632 (8th Cir.1993) (citing Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir.1992); Edwards v. Secretary of Health and Human Servs., 809 F.2d 506, 507 (8th Cir.1987); McCoy v. Schweiker, 683 F.2d 1138, 1142 (8th Cir.1982)).

The ALJ determined that Norng was able to' return to his past relevant work, and, therefore, is not entitled to disability benefits. ’ The issue for the court to decide is whether the ALJ’s decision was based on substantial evidence. In an effort to make that determination, the court will review the ALJ’s order and the record as a whole.

1. The ALJ’s analysis of Norng’s subjective pain complaints

In his decision, the ALJ reviewed the medical evidence in the record, particularly Dr. Strittholt’s statement that he did not “feel that there was anything else to offer to Norng” (Tr. 174), and Dr. Johnson’s statement that “I really feel there is nothing else to do with the chest pain.” (Tr. 177). The ALJ determined that those statements support a finding that there is no objective medical evidence supporting Norng’s disability claims. (Tr. 23). The ALJ concluded the following regarding the medical evidence in the record: “Thus, the medical evidence shows no ‘objective’ basis for the Claimant’s present allegations of disabling pain in his chest, lower back, and right shoulder. Likewise, there is no ‘objective’ basis for his complaints of fatigue and dizziness with postural changes.” Id. Accordingly, the ALJ completed the first part of his disability analysis — the review of the objective medical evidence — by concluding that Norng is not medically disabled.

The court is aware, based on the foregoing, that its analysis of the ALJ’s evaluation of the objective medical evidence is limited. Accordingly, it cannot dispute the fact that the medical evidence, standing alone, may not support Norng’s claim of disability. Nonetheless, under Hinchey, 29 F.3d at 432, this is only half the analysis. The ALJ must also evaluate the subjective testimony of Norng and his witnesses before deciding on whether Norng is, in fact, disabled. Ricketts v. Secretary of Health and Human Servs., 902 F.2d 661, 664 (8th Cir.1990) (citing Smith v. Heckler, 735 F.2d 312, 317 (8th Cir.1984) in turn citing Basinger v. Heckler, 725 F.2d 1166, 1169-70 (8th Cir.1984) (“a failure to make credibility determinations concerning [the subjective testimony of the family and others] requires a reversal and remand”)). In this ease, the ALJ found that Norng and his witnesses were not credible and, therefore, ruled that Norng is not disabled. (Tr. 23-25). The court will, therefore, review the ALJ’s decision and the record to determine whether the ALJ’s credibility determinations were supported by substantial evidence as a whole.

a. Alleged inconsistencies regarding cooking and shopping

In his decision, the ALJ discounted Norng’s subjective pain complaints by focussing on Norng’s testimony. Specifically, the ALJ found an inconsistency in Norng’s testimony regarding the issue of cooking. The ALJ wrote that “(t)he Claimant stated that he does ‘nothing’ during the day. He said he does no housework and only ‘a little’ cooking. He said he cooks barbecue dishes and sour sauce and that his wife cooks when he doesn’t do so. He then said he does some cleaning of the house but that his children do the laundry. He also does the grocery shopping.” (Tr. 19).

Based on that information, the ALJ determined that Norng’s testimony was not credible. He stated that “In Exhibit 6/4 [Norng] answered a question concerning his activities involving household maintenance such as cooking, cleaning, and other odd jobs by stating that he ‘can’t do any of these’. Although he acknowledges no improvement in his condition since he completed that form in December of 1992, he testified that he is now able to do some cooking and shopping.” (Tr. 23).

Norng objects that his testimony created any sort of inconsistency in the record, and maintains that the statements regarding his ability or inability to do housework should not have formed the basis for the ALJ’s credibility determination. He points out that Kan, the son-in-law, clarified this point by stating that Norng can only do short-term shopping due to his back problems. Norng also points out that the ALJ was not paying attention to Kan’s testimony when he made those statements about shopping. As is indicated more fully in footnote 15, the ALJ said that despite the fact that he was not paying “any attention at all” when Kan spoke about Norng’s shopping, he would not disregard that testimony. Norng suggests, however, that this is precisely what happened.

The Secretary defends the ALJ’s finding of an inconsistency in the testimony, stating that an individual’s subjective complaints must be evaluated in light of the evidence that may be inconsistent with the claimant’s testimony. For support, she cites inter alia, McClees v. Shalala, 2 F.3d 301 (8th Cir. 1993). In McClees, the Eighth Circuit found inconsistencies between the claimant’s subjective pain complaints and the medical evidence, then found other inconsistencies between his allegations of pain and his testimony. The court stated that:

The ALJ also noted the significant difference between the appellant’s account of his daily activities given at the first hearing in 1987, and the recitation given at the hearing in 1990.. In 1987, appellant testified that in 1979 he could walk two blocks to a coffee shop, drink coffee for 10 or 15 minutes, then walk home. He also stated that he did the cooking, housework, and laundry in about 10 to 15 minute increments. He stated that he could stand for up to two hours and sit for an hour at a time. In 1990, the appellant testified that he was limited to fixing breakfast and occasionally helping with dinner, driving his wife to and from work, reading, watching television, and lying down. He stated that he could stand for no more than an hour, and sit for no more .than 80 minutes. We conclude that the ALJ’s decision to discredit McClees’s subjective complaints of pain and functional restrictions under Polaski is supported by substantial evidence.

McClees, 2 F.3d at 303 (emphasis added). The Secretary also cites Walker v. Shalala, 993 F.2d 630 (8th Cir.1993) as supporting her contention that Norng’s testimony amounted to an inconsistency appropriately weighing against the credibility of his subjective pain testimony. In Walker, the Eighth Circuit determined that the claimant’s subjective pain testimony was inconsistent with his daily activities because those activities represented the “full range of light work” under the appropriate Social Security regulations. Walker, 993 F.2d at 632.

As well, the Secretary cites Dodd v. Sullivan, 963 F.2d 171 (8th Cir.1992) (per curiam) for support. In Dodd, the claimant on appeal attempted to argue that the ALJ erroneously concluded that he had the ability to perform the full range of medium work under the regulations. Dodd, 963 F.2d at 172. The Eighth Circuit determined that the ALJ’s decision was supported by substantial evidence in the record due, in large part, to the fact that claimant Dodd “appeared to be financially motivated to qualify for disability benefits, did not seek frequent medical help or use assistive devices and that there was no evidence in the record that he told his doctors that his medication made him drowsy.” Id. Regarding the specific issue of the claimant’s daily activities, the Eighth Circuit found that in addition to the above-mentioned facts, claimant had also attempted to assert that “his nonexertional impairments harm his ability to stand, walk, squat, bend and lift,” yet his testimony showed that he was able to shop, fish and fix bicycles. Id.

Finally, the Secretary cites Nelson v. Sullivan, 946 F.2d 1314 (8th Cir.1991) as supporting the ALJ’s finding of an inconsistency in Norng’s testimony. Nelson, a case which the Eighth Circuit acknowledged was a “close” one, Nelson, 946 F.2d at 1315, involved a claimant who had been receiving disability benefits, but whose condition had improved after surgery to the point where the ALJ had determined he was no longer éligible for those benefits. Nelson, 946 F.2d at 1316-17. In that ease, the Eighth Circuit found in the Secretary’s favor after noting that one of the claimant’s physicians remarked that after treatment claimant Nelson stated that his pain was “completely alleviated,” Nelson, 946 F.2d at 1316, that Nelson was only visiting his physician once a year, that his physician did not prescribe any medication stronger than aspirin and that “(t)hese factors, combined with claimant’s moderate daily schedule of activities, suggest an inability to engage in some sort of light work.” Nelson, 946 F.2d at 1317. However, the court did not specify what that daily schedule of activities consisted of.

Based on the foregoing case law, the court does not find that Norng’s subjective pain testimony was discredited by any inconsistencies in the record regarding his ability to cook and shop. Initially, the court notes that a “disability” under the Social Security Act does not mean total disability or exclusion from all forms of human and social activity. Harris v. Secretary of the Dep’t of Health and Human Servs., 959 F.2d 723, 726 (8th Cir.1992) (claimant’s ability to cook, shop, clean, do laundry and visit friends does not constitute substantial evidence that claimant can engage in substantial activity). “(A) claimant need not prove that he or she is bedridden or completely helpless to be found disabled.” Payton v. Shalala, 25 F.3d 684, 687 n. 6 (8th Cir.1994) (citing Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989)). “In order to find that a claimant has the residual functional capacity to perform a certain type of work, the claimant must have the ability to perform the requisite acts day in and day out, in the sometimes competitive and stressful conditions in which people work in the real world.” Id. (citing McCoy v. Schweiker, 683 F.2d 1138,1147 (8th Cir.1982) (en banc)). “The ability to prepare meals for dependents, occasionally visit with friends, watch TV, and read does not qualify as the ability to do substantial gainful activity ... and cannot reasonably be characterized as ‘a great deal of physical activity.’ ” Id. (citing Thomas, 876 F.2d at 669).

If the ALJ had determined that Norng is not disabled based on his testimony regarding cooking and shopping, the court would be inclined to find in Norng’s favor. However, the ALJ used Norng’s testimony about cooking and shopping to demonstrate an apparent inconsistency. Specifically, he pointed to what he referred to as Exhibit 6/4 in which Norng was asked on the fourth page to “describe your daily activities in the following areas [including cooking, cleaning, shopping and odd jobs around the house] and how much you do of each and how often you do it.” (Tr. lllp). In that category, Norng stated that he “can’t do any of these.” Id. Since Norng testified at the hearing that he cooks “a little bit” (Tr. 61) — barbecuing or making sour sauce — that he goes grocery shopping (Tr. 62), and that he cleans the house (Tr. 61), the ALJ asserted that Norng had lied and that all of his pain testimony was tainted by this inconsistency.

I disagree. First, it is undisputed that Norng speaks no English and that all of the forms which he signed were filled out by “interpreters” who were actually Norng’s friends. Norng’s friends may have the ability to write in English on a limited basis, but they may not be fluent in the language. It is very likely that the significance of the questions in the disability determination form and the accuracy of the answers written on that and other forms was lost in the translation.

Second, the statement that “I can’t” cook is not necessarily inconsistent with applying barbecue sauce to meat and baking it in an oven, or combining a few spices and making a sauce to be applied to meat or vegetables. It may well be that Norng’s concept of “cooking” involves creating an entire meal with a variety of foods (e.g. rice, meat, poultry, fish, vegetables) at several temperatures for a number of different time periods, with bending and lifting of pots and pans, then combining the cooked items to create something edible. If that is the case, then it is not beyond comprehension that Norng is, or believes that he is, unable to cook.

Accordingly, this case is distinguishable from McClees because there is no “substantial difference” between Norng’s answers on the disability determination form and his testimony at the ALJ hearing. Likewise, it is distinguishable from Walker because there is no evidence in the record which demonstrates that Nomg’s condition meets the full range of any type of exertional level under the applicable guidelines based on his ability to cook barbecued dishes and make sour sauce, or to do a small amount of shopping, and the ALJ does not assert that it does. I acknowledge that Dodd is a closer case, but I believe that Dodd is not persuasive because shopping and cooking relatively simple meals which do not require a significant amount of bending or stretching do not require the same physical exertion as fishing and fixing bicycles. Finally, Nelson is not dispositive because in that case the Eighth Circuit did not describe the claimant’s “moderate” activities, and, in any event, it considered Dodd to be a “close” case in which the claimant had at one time been disabled, but had undergone therapy which had improved his condition. In the present case, Norng underwent treatment, but never showed signs of marked improvement.

As stated above, the ALJ had a duty to fully and fairly develop the record. See Battles, 36 F.3d at 44. The record shows that the ALJ did not ask Norng to explain what he meant when he had his interpreter write on the disability determination form that he couldn’t cook. If the ALJ felt this was a significant enough inconsistency to void the plaintiffs subjective complaints, then he had a duty under Battles to inquire at the hearing about it, or to notify the parties and to have them supplement the record on this issue. He failed to do so. Similarly, although he used Norng’s shopping against him, the ALJ did not stress the point at the hearing and did not ask for supplementation on that point, either. In fact, he admitted that he was not paying “any attention” at all. (Tr. 79).

The ALJ violated his duty under Battles to develop the record, and he should not have based his credibility analysis on the alleged “inconsistency” between Norng’s answers on the disability determination form and his answers to the ALJ’s questions without further exploring the meaning of those statements. Based on the record as it stands, the court is of the opinion that Norng’s statements regarding cooking and shopping may not be inconsistent. To the extent that the ALJ found against Norng on that basis, then, the court is persuaded that the ALJ’s determination was not supported by substantial evidence in the record as a whole.

b. Alleged discrepancies regarding Norng’s motivation to work

The ALJ pointed to another apparent inconsistency in the record regarding Norng’s motivation to receive disability benefits. The ALJ pointed to Dr. Johnson’s January 1, 1993 notation 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” (Tr. 175) and with this statement he concluded that Norng is not disabled, but is, instead, concerned only with caring for his wife. (Tr. Zip). The ALJ also noted that during the administrative hearing, Norng acknowledged that he has a dual motivation for staying home — his pain and his need to take care of his wife. (Tr. 65). Specifically, the testimony was as follows:

Q. Is the reason you’re not working, is it because you’re caring for your wife as opposed to having pain?

A. It’s both.

Q. If you were, if you didn’t have any pain would you still be staying home taking care of your wife?

A. If I was not sick I would not stay and watch.

Q. Who would watch your wife?

A. I would watch her but it would have it’s own time.

Q. Who would watch her in the daytime when you were at work and your children were at school?

A. I think there’s not going to be anybody to watch her.

(Tr. 65).

In response to the ALJ’s finding that Norng’s motivation to care for his wife nullified his disability claim, Norng argues that “the testimony of the Claimant was premised on the fact that if he were able to go to work, who would take care of his wife, and thus, contained an inaccurate hypothetical question to the Claimant, due to the fact that he is, in fact, unable to work, due to his disabilities and not the limitations of his wife. (R. 65).” (PI. hr. at 8).

It is true that the financial motivation to not work or to be considered disabled is a factor considered by district courts in the Eighth Circuit when dealing with Social Security appeals. Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir.1993) (per curiam); see also Dodd, 963 F.2d at 172. Nonetheless, it is but one factor which is considered. In Ownbey, for example, the Eighth Circuit found that “[the claimant’s] past work history does indicate a lack of financial motivation to return to work,” Ownbey, 5 F.3d at 345, but the court based its disability analysis on that plus the fact that the claimant

did not seek or receive treatment for his alleged pain in his back, neck, and head; numbness in his hands; and dizziness; and drowsiness from medication. Ownbey sought treatment only for the pain in his right ankle. Moreover, Ownbey’s testimony conflicted with Dr. Thorn’s observation. Ownbey testified that he could sit for only five minutes, could lift and carry only five pounds, and could stand for only one hour. Dr. Thorn instead observed Ownbey could sit without any restrictions, could lift thirty pounds, and stand for two hours.

Ownbey, 5 F.3d at 344-45. In Norng’s case, his work history does not suggest malingering, and none of the above additional factors are present. Norng has regularly consulted physicians about his pain, has not excluded from the ALJ any of the pain he described to his physicians and has testified in accordance with the reports of the physicians.

In Dodd, the district court affirmed the Secretary’s denial of benefits where the Secretary’s denial was based, in part, on the fact that the claimant “appeared to be financially motivated to qualify for disability benefits.” Dodd, 963 F.2d at 172. However, the denial was also based on the additional factors, expressed as follows: “[the claimant] was able to perform normal daily activities ... did not seek frequent medical help or use assistive devices, and there was no evidence in the records that he told his doctors that his medication made him drowsy.” Id. The Eighth Circuit also noted that “Dodd only recently began seeing a doctor regularly, exhibited normal movement in his back, and did not use a back brace.” Id. Further, as already mentioned, the Eighth Circuit also considered the fact that the claimant’s “daily activities, such as shopping, fishing, and fixing a bicycle [were] evidence of his ability to perform medium range work.” Id. For reasons already stated, Norng’s situation is distinguishable from that of the Dodd claimant.

It does appear, as Norng asserted, that the ALJ was fishing for a response which would suggest that Norng’s true motivation for claiming a disability was not his pain, but instead his desire to stay at home with his wife. ■ However, read in context as set out above, Norng’s response to the ALJ’s questions clearly demonstrated that if he felt that he was able to work he would do so, thereby leaving his wife at home alone. {Tr. 65). Also, Norng never stated that his primary or sole motivation for claiming a disability was his desire to take care of his wife. Instead, he stated that his reason for not working was “both” {Tr. 65) because of his pain and because he was caring for his wife. Id. With respect to the statement he made to Dr. Johnson (“(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” {Tr. 175)), this sentence, taken from Dr. Johnson’s notes, is in the conjunctive: he needs to be on permanent disability and his wife can’t work. While it may suggest that Norng wanted the doctor to declare that he was disabled so that he could collect money with his wife out of work, it also suggests that he was in great pain but still needed to watch out for his wife. Here again, the statement does not demonstrate that Norng is not experiencing great pain, nor that the wife’s care is Norng’s primary motivation for claiming a disability.

As well, that statement was made on January 7, 1993, a mere two months after the November 4, 1992 automobile accident. It is possible that Norng was having problems collecting insurance proceeds from his accident at that time and that he was briefly financially motivated by a desire to be found disabled. Dr. Johnson’s notes do not indicate that the subject ever came up after that, nor does anything else in the record, save for Norng’s responses to the ALJ’s questions. If the ALJ thought that Dr. Johnson’s notes pertaining to Norng’s disability claim were significant enough to destroy Norng’s credibility, then the ALJ had a duty under Battles to more fully and fairly develop the record. In other words, the ALJ should have asked Norng at the hearing to explain those remarks. For all of the foregoing reasons, the court is persuaded that the ALJ erred in discrediting Norng’s subjective pain complaints based on an alleged financial motivation to not work.

c. Alleged inconsistencies regarding Nomg’s pain on December 1, 1992 and his pain on May 20, 1993

In his decision, the ALJ stated the following:

On December 1, 1992, when the Claimant filed his application for disability benefits, he was noted to have pain when he stood up or sat down. (Exhibit 6/8) However, on May 20, 1993, when he filed a report in conjunction with his request for reconsideration, a Social Security claims representative recorded that there was “no observable pain” during his interaction with the Claimant. (Exhibit 7/5)

(Tr. 21). The claims representative’s statement was in response to a mandate on the application form which read, “(d)escribe fully: General appearance, behavior, any unusual observed difficulties not noted elsewhere, any unusual circumstances surrounding the interviews.” (Tr. 129). The representative’s full answer was as follows: “No observable pain. Claimant reached around to his back pocket in searching for a piece of paper — did not appear painful (no change in facial expression).” Id.

Norng objects to the ALJ’s discounting of his subjective pain complaints on the basis of the claims representative’s report when weighed against Norng’s original disability application. “Who this person is and how long they saw the Claimant is not clear from the record,” Norng argues. (PI. br. at 9). “Furthermore, the fact that a Social Security clerical worker could not observe pain due to no change in facial expression is not substantial evidence that Claimant does not have and experience difficulties with pain.” Id. The Secretary did not respond to this argument, but I am assuming that her response would be subsumed in her arguments pertaining to other alleged inconsistencies in the record.

For reasons already stated twice before, I believe that if the ALJ felt the two reports were conflicting, he had a duty under Battles to attempt to resolve the conflict. He breached that duty by not bringing the matter to Norng’s attention at the hearing, and not giving him the opportunity to explain it. Further, I hesitate to give credence to the observations of a Social Security claims representative, since those observations are not medical opinions and are probably not objective. Therefore, the ALJ erred in relying on the claims representative’s observations as a basis for finding that Norng’s subjective pain complaints were not credible.

d. Alleged inconsistencies regarding Norng’s pain on November 3, 1992 and his pain on November 10, 1993

On page five of his decision, the ALJ stated the following:

On October 29, 1992 and again on November 3, 1992, the day before the Claimant’s automobile accident, he received physical therapy after complaining of pain in his right elbow. (Exh 13/4) However, when he was admitted following the collision, he reported only pain in the left side of his chest along with a headache and “a little” neck pain. He reported no pain in his right arm or any other extremity. Shortly before his discharge from the hospital, he complained of “some visual changes.” (Exhibit 14)

(Tr. 21). Norng asserts that this alleged inconsistency in the record is unreliable because of the language barrier between he and his treating physicians. I agree. The November 29, 1992 progress notes from Marian Health Center stated that “Pt. uses an interpreter who is very difficult to understand and did not always understand questions asked in English.” (Tr. 11+6). Similarly, Dr. Johnson stated in his November 10, 1992 report that “(s)ince he does not speak English, it was difficult to get the patient the pain medication that he needed.” (Tr. 11+9). Even if the language barrier was not a problem, however, this evidence is still not reliable because of the significant change in circumstances between Norng’s physical condition before and after the automobile accident. Given the muscle aches and chest and back pain which resulted from the accident, combined with the pain medication he was taking at the time (Tylenol # 3), it may well be that the elbow pain he had previously experienced was exceeded by the pain he felt from the accident. Therefore, the ALJ erred in using the above-mentioned alleged inconsistencies in his credibility analysis.

2. The credibility of Norng’s son-in-law

In addition to finding that Norng was not credible, the ALJ also found Norng’s son-in-law, Choeun Kan, not credible. The ALJ determined that Kan was not credible because, when Kan pointed to portions of his body in order to demonstrate those portions of Nomg’s body which radiated pain, he confused the right side with the left. The testimony went as follows:

EXAMINATION OF WITNESS BY ATTORNEY:

Q. Has your father-in-law told you what his complaints are regarding pain?

A. He just told me like he hurt on the, the rib, said I hurt on the rib, I cannot sit down, and just hurt on the back, and other hand, it’s low down, and—

Q. Okay, you’re pointing to demonstrate, pointing to your rib area and you’re pointing to your right shoulder area?

A. Yeah, and on the back.

ALJ. Did he point to the right shoulder area, I didn’t notice.

A. No, it was this.

RE-EXAMINATION OF WITNESS BY

ADMINISTRATIVE LAW JUDGE:

Q. Okay, I’m sorry, I, I wasn’t watching and I didn’t see him do that so I just, I heard back and I heard ribs but I didn’t hear right shoulder. Right shoulder he told you about also, did he tell you that his right shoulder hurt him too[?]

A. Yeah just, just go up like this (INAUDIBLE), and go up like that and go on the side.

Q. You mean his right ribs and his right shoulder?

A. Yeah.

Q. And his back?

A. Yeah.

Q. Okay.

(Tr. 7Jf-5). Accordingly, the ALJ stated that Kan was not credible because he “testified that the Claimant had told him that the right side of his chest hurt [when] all of the other evidence in this case shows that it was the left side of the Claimant’s chest which caused him pain.” (Tr. ). The Secretary defends the ALJ’s determination that Kan was not credible on the basis that “the ALJ is required to consider such inconsistencies in determining the credibility of a witness.” (Def. hr. at 11).

The court does not dispute that the Secretary is permitted to discount the credibility of witnesses in a disability determina