Recommended Disposition
JEROME T. KEARNEY, Magistrate Judge.
Instructions
The following recommended disposition was prepared for U.S. District Judge J. Leon Holmes. A party to this dispute may file written objections to this recommendation. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation.1 The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.2 If no objections are filed, Judge Holmes may adopt the recommended disposition without independently reviewing all of the record evidence.
Reasoning for Recommended Disposition
Jeffrey A. Jordan seeks judicial review of the denial of his application for social security disability benefits.3 Jordan last worked as a truck driver for a plastics recycling company.4 He claims he has been disabled since in March 2011 when he stopped working after a workplace back injury.5 The record documents no workplace injury.
The Commissioner's decision.
After considering the application, the ALJ determined Jordan has severe impairments — lumbar degenerative disc disease status post fusion with radiculopathy, obesity, and depression with anxiety6 — but he can do some sedentary work.7 Because a vocational expert identified available sedentary work,8 the ALJ determined Jordan is not disabled and denied the application.
After the Appeals Council denied review,9 the ALJ's decision became the Commissioner's final decision for the purpose of judicial review.10 Jordan filed this case to challenge the decision.11 In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.12 This recommendation explains why the court cannot determine whether substantial evidence supports the decision and why this case should be remanded to the Commissioner for further proceedings.
Jordan's allegations.
Jordan challenges the determination that he can do some sedentary work. He relies on the orthopedic examiner's opinion as proof he cannot work. The examiner reported that Jordan can sit for six hours per day and stand/walk for up to one hour per day.13 According to Jordan, this opinion proves he is physically unable to work on a full-time basis. He maintains the ALJ should have given the examiner's opinion significant weight. For these reasons, he maintains substantial evidence does not support the decision.14
Applicable legal principles.
The orthopedist's opinion is probative of Jordan's application because Jordan based disability on musculoskeletal impairment. An orthopedist specializes in the musculoskeletal system.15 The Commissioner's regulations encourage the ALJ to give more weight to a specialist's opinion about medical issues related to the specialty than to a medical opinion outside the specialty.16 An ALJ, however, "may reject the conclusions of any medical expert, whether hired by the claimant or the government, if they are inconsistent with the record as a whole."17 The court must consider whether the orthopedic opinion is inconsistent with the record as a whole.
The opinion is inconsistent with the record as a whole, but the ALJ's reasoning reflects a mistake requiring a remand.
The orthopedist's opinion flowed from a post-hearing exam.18 The ALJ ordered the exam because Jordan had little treatment after back surgery.19 The examiner is a physician who often provides the Commissioner with medical opinions about a claimant's ability to work. Considering the purpose of the exam,20 the examiner's speciality, and the Commissioner's frequent reliance on the examiner, one might expect the ALJ to give the opinion significant weight, but the ALJ gave the opinion little weight, reasoning that there is no "objective medical evidence to support the[] limitations" and that the examiner relied "quite heavily" Jordan's subjective reported symptoms.21
Substantial evidence supports many aspects of the ALJ's reasoning because earlier medical findings are not as limiting as the orthopedist's medical findings. Treating medical providers consistently documented tenderness in the low back,22 but no problems with function,23 muscle strength, range of motion, or sensation. In contrast, the orthopedic examiner documented problems in these areas. The following chart illustrates the difference between a treating provider's medical findings and the orthopedic examiner's findings.
emergency room visit orthopedic exam
three months before hearing two months & 23 days after hearing
"Neck exam included findings of normal "flexion is approximately 40°, extension is
range of motion, ... no tenderness."24 approximately 50°, rotation is approximately
60° right and left side, respectively, and
lateral flexion is approximately 40° right and
left side, respectively."25
"Back exam included findings of normal "flexion is no more than 70°, extension is
inspection, no tenderness."26 approximately 0°, and lateral flexion is
approximately 10-15° right and left side,
respectively."27
"Upper extremity exam included findings of "Strength in the upper extremity today is at
inspection normal, Range of motion normal, 5/5. Sensation is diminished in the right
Motor strength normal." hand at the ring and small finger."28
"Lower extremity exam included findings of "Strength in the lower extremity today is at
inspection normal, Range of motion normal, 5/5 on the left side and 4+/5 on the right
Motor strength normal."29 side."30
"Gait normal."31 "he walks with a limp favoring his right leg.
He cannot squat and come to a full stance."32
The differences may have flowed from Jordan's complaints — chest pain at the emergency room versus musculoskeletal complaints during the orthopedic exam — but the differences may have flowed from motivation and exaggeration. Degenerative changes in the spine likely cause back pain,33 but it's reasonable to expect that at least one of Jordan's several treating medical providers would have observed and documented problems with range of motion, function, and sensation if Jordan has such problems, especially considering that Jordan sought treatment for back pain.34 The lack of negative medical findings by treating medical providers, the inconsistency in Jordan's reports about the source of his back pain,35 and the omission of treatment records from the back surgeon, suggest Jordan exaggerated his symptoms during the orthopedic exam.
Even though the orthopedic opinion is inconsistent with the record as a whole, the ALJ's reasoning reflects a mistake. The mistake is reflected in the following passage:
In addition, there is nothing to show that the claimant is sensitive to chemicals, noise, humidity, dust/fumes or temperature extremes, as found by [the examiner]. There is no evidence of emergent care treatment or hospitalization related to [chronic obstructive pulmonary disease], emphysema or asthma. The claimant does not take any medications for any of these conditions. [The examiner] noted a past medical history of asthma but had no records or other information to rely upon other than the claimant's own statements. There is no diagnosis of asthma in the records.36
This passage reflects criticism for reporting environmental limitations in the absence of medical evidence of a respiratory impairment.37 Reporting environmental limitations in the absence of supporting medical evidence is a good reason for discounting a medical opinion, but the orthopedic examiner reported no environmental limitations. The ALJ misread the report; the ALJ made a mistake.
Not every mistake provides a basis for relief, but the mistake in this case requires a remand because the decision doesn't indicate the role unsupported environmental limitations played in discounting the opinion. Because unsupported environmental limitations wasn't the only basis for discounting the opinion, the court cannot determine whether substantial evidence supports the decision. Doing so forces the court to speculate about the role unsupported environmental limitations played in weighing the opinion. Because the court may not speculate, this case should be remanded for reconsideration of the orthopedic examiner's opinion.
Conclusion and Recommended Disposition
The undersigned magistrate judge recommends REMANDING this case to the Commissioner, because the court cannot speculate about the role the mistake played in weighing the opinion. Only the ALJ can reconcile the mistake. If the district judge decides to remand this case, the remand order should include the following instructions:
This case is remanded to the Commissioner because the ALJ's consideration of the orthopedic examiner's medical opinion reflects a mistake. The ALJ criticized the orthopedic examiner for reporting unsupported environmental limitations, but in actuality, the orthopedic examiner reported no environmental limitations. The ALJ did not indicate what role the environmental limitations played in weighing the opinion, so the court cannot determine whether substantial evidence supports the ALJ's decision.
On remand, the ALJ shall reconsider the orthopedic examiner's opinion and assign appropriate weight. Once the ALJ reconsiders the opinion, the ALJ shall reassess Jordan's residual functional capacity and determine whether work exists that Jordan can do. The ALJ may exercise discretion in determining whether to obtain updated medical evidence and whether to order a second orthopedic exam.
A remand could have been avoided if Jordan's attorney had alerted the Appeals Council to the ALJ's mistake, but the attorney did not mention the mistake to the Appeals Council38 or to this court on judicial review. If the attorney moves for attorney fees, it would be appropriate for the attorney to address the omission in his application.
