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Jordan v. Colvin

United States District Court, E.D. Arkansas

April 23, 2015

Jeffrey A Jordan Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Defendant.

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 anxiety[6] - 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 ...


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