Jordan v. Commissioner of Social Sec.

• Citation: 548 F.3d 417
• Decision Date: 25 November 2008
• Docket Number: No. 07-5876.,07-5876.
• Parties: Dineen JORDAN, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

548 F.3d 417

Dineen JORDAN, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 07-5876.

United States Court of Appeals, Sixth Circuit.

Submitted: October 28, 2008.

Decided and Filed: November 25, 2008.

ON BRIEF: Janice E. Barnes-Williams, Office of the General Counsel, Social Security Administration, Kansas City, Missouri, for Appellee. Dineen Jordan, Brownsville, Tennessee, pro se.

Before: MARTIN and GILMAN, Circuit Judges; DOWD, District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Dineen Jordan suffered an on-the-job back injury in 1991. She filed an application for Social Security disability benefits 12 years later, claiming that she could not work because she suffered from back pain and fibromyalgia as a result of the 1991 injury. An Administrative Law Judge (ALJ) found that her complaints of impairment were not credible. The ALJ specifically relied on the opinions of two physicians who stated that Jordan was exaggerating her symptoms, one of whom had watched surveillance videos showing that Jordan was functioning with no signs of debilitation. In addition, the ALJ concluded that, while Jordan could not perform the duties of her old job, there were a wide variety of light-duty jobs available to her. Jordan was thus found not to be disabled for Social Security purposes. Her request for review was subsequently denied by the Appeals Council of the Social Security Administration (SSA), which caused Jordan to file a civil action in the federal district court.

The district court issued an order affirming the SSA's decision, holding that the ALJ's opinion was supported by substantial evidence. Because we conclude that the ALJ lacked sufficient evidence to make a finding regarding Jordan's future job prospects, we VACATE the judgment of the district court with instructions to REMAND the case to the SSA for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

Jordan was born in March 1961 and is a high school graduate. She completed a number of college courses but did not receive a degree. On April 8, 1991, while working for the United States Postal Service as a mail handler, Jordan experienced severe back pain after lifting a heavy sack of mail. She was taken to the emergency room, where she was x-rayed and diagnosed with a paraspinous muscle sprain and discharged with a prescription for muscle relaxants and instructions to maintain bed rest.

Shortly thereafter, Jordan was seen by Dr. Richard Barse, an internist. Based on x-rays that showed no fractures, Dr. Barse determined that Jordan had suffered a lumbrosacral strain. He directed Jordan to undergo two weeks of physical therapy and referred her to Dr. Dario Norlasco, an orthopedic surgeon. Upon examining Jordan, Dr. Norlasco confirmed Dr. Barse's diagnosis of a lumbrosacral sprain and prescribed bed rest. After a July followup appointment, Dr. Norlasco found Jordan to be recovering well and released her for light-duty work, with a lifting restriction of 20 pounds.

Jordan returned to work in a limited-duty assignment. Her duties included taking the bands off of bundled mail and sorting letters with the use of trays that were located above her head. She stopped working in September 1991 due to a recurrence of pain in her lower back, buttocks, and left leg. On October 14, 1991, Dr. Norlasco performed a magnetic resonance imaging (MRI) scan on Jordan that revealed disc protrusions at two levels, as well as degenerative changes at the L5-S 1 disc space.

Jordan never returned to work after the recurrence of pain in 1991. She saw numerous doctors over the following years in connection with her workers' compensation claim and, significantly later, with her Social Security disability claim. The following doctors opined that Jordan was completely unable to work: Dr. Thomas Arkins (a neurosurgeon), Dr. Robert McConnell (whose specialty is not specified in the record), Dr. William Massey (a general practitioner), Dr. Stuart Belkin (an orthopedic surgeon), Dr. Mary Anne Rodriguez (whose specialty is not specified in the record), and Dr. Robert Winston (an internist). Jordan also saw a urologist, Dr. Arnold Baskin, in 1993 for incontinence. Dr. Baskin opined that the incontinence was likely related to the 1991 back injury.

But not all of the doctors who examined Jordan opined that she was totally disabled. Dr. John Shine, an orthopedic surgeon, examined Jordan in 1993 and concluded that Jordan could not return to her usual job, which involved heavy lifting. He opined, however, that she would be able to do very light-duty work, perhaps on a part-time basis.

Dr. Stephen Waggoner (whose specialty is not specified in the record) performed an independent medical examination on Jordan in August 2001. Dr. Waggoner noted that Jordan showed "obvious signs of symptom magnification with 5/5 Waddell signs [a clinical test for patients with low back pain that can be used to indicate whether the patient is exaggerating symptoms] positive." When Jordan got out of her wheelchair for the examination, she grimaced and trembled, but when she did not think that Dr. Waggoner was looking, she moved out of the wheelchair with ease. Dr. Waggoner made the following diagnoses based on his examination: (1) degenerative disc disease with chronic lower back pain, (2) no clinical evidence of lumbar radiculopathy, and (3) clinical evidence of symptom magnification. In conclusion, Dr. Waggoner opined that Jordan would be able to lift 25 to 50 pounds and that she had no permanent partial impairment.

Finally, Dr. Carl Huff, an orthopedic surgeon, saw Jordan for an independent medical examination in August 2002. Dr. Huff performed a detailed review of Jordan's prior medical records, including x-rays, MRI scans, and nerve conduction/EMG needle studies. Jordan's lumbar spine x-rays from 2001 were negative. Her MRI results showed degenerative disc changes at three levels and central disc protrusions at two levels, but revealed no evidence of nerve root impingement. The nerve conduction/EMG needle studies, which had been performed in 2002, were negative, showing no evidence of radiculopathy, peripheral nerve entrapment, or myelopathy.

Dr. Huff also performed a physical examination. He could find no objective manifestation of any mechanical dysfunction of Jordan's back. Jordan frequently exhibited pain responses that were inconsistent with any underlying physiological conditions. For example, when Dr. Huff lightly stroked the skin of her lower back area or applied mild pressure to the top of her head, such that no force was actually transmitted to the spine, Jordan reacted with "an extreme response of pain with grimacing, verbal response, and withdrawal gestures." Jordan also exhibited an exaggerated pain response to twisting motions that involved no relative movement of the thoracolumbar spine. When Dr. Huff extended Jordan's leg at 90 degrees of elevation during an ankle reflex test, she reported no pain. But when Dr. Huff later lifted her leg in the same manner during another type of test, Jordan cried out and made pronounced physical and verbal gestures.

As part of his consultation, Dr. Huff also reviewed three video surveillance tapes of Jordan taken in 2001. One video showed Jordan carrying and tossing around tree limbs in her yard in a relaxed manner. A second video recorded Jordan coming out of a store carrying a sack of merchandise with no difficulty, easily getting into her car, and driving away. The third video showed Jordan coming out of a Gold's Gym without showing any manifestation of back pain. Dr. Huff also reviewed a written note from a trainer at the gym, who stated that Jordan visited the gym with regularity, using the treadmill and bicycle.

Dr. Huff's report stated that he was "unable to establish any residuals of the injury of 4/8/91. Her MRI scan reports have remained remarkable [sic] stable over the years...." Dr. Huff noted that all five "Waddell's Signs" were positive and that there was no physiological basis for Jordan's complaints about her back. In conclusion, Dr. Huff stated that Jordan had "no work restrictions."

B. Procedural background

Jordan applied to the SSA for disability insurance benefits on March 20, 2003. Her long delay in applying for disability benefits was presumably related to her receipt of workers' compensation benefits in the interim, although the record is silent in this regard. The parties do not dispute that Jordan was insured for disability benefits through December 31, 1996, but not thereafter. A hearing before an ALJ was held on November 4, 2004 in Jackson, Tennessee.

Jordan testified at the hearing that she had the following medical problems: three ruptured discs; degenerative joint disease; swollen ankles; neck, shoulder, and arm pain; severe headaches; hypertension with an accelerated heartbeat; acid reflux disease; stomach pain; diarrhea; incontinence; and depression. She also stated that she had trouble walking, could not sit for long periods of time, and had been prescribed antidepressants. Jordan further testified that, because of her disability, she was no longer able to enjoy dancing, gardening, going to the movies with her daughter, or going to church.

The ALJ determined that Jordan was not disabled. In his decision, the ALJ found that Jordan was insured for benefits through December 31, 1996, and that she had not worked since her alleged disability date in September 1991. The ALJ also found that Jordan's degenerative lumbar disc disease was a severe impairment, but not so severe that it met or equaled the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, Regulations No. 4, which would have dictated an automatic ruling of "disabled." He further found that there was no medical evidence that Jordan suffered from any of her other claimed impairments — fibromyalgia, incontinence, depression, etc. — during the period when she was insured.

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