In a new published 4th Circuit opinion Oakes, NOSSCR board member Karl Osterhout achieved a significant victory that adds to the improving caselaw from that circuit.  Addressing an improper discounting of a medical opinion concerning use of an ambulatory device, the ALJ’s handling of Oakes’ subjective complaints, and the ALJ’s improper review of Oakes’ activities of daily living, the 4th Circuit’s opinion is a must-read for all NOSSCR members in all circuits.

From Karl:

This case certainly was not won with a lot of evidence. In fact, there were only 12 pages of it (a CE and two ER visits)! However, once the ALJ agreed (only after repeated badgering by the rep) to schedule the CE, because the claimant did not have access to free health care or any ability to pay for it, the opportunity arose for the Fourth Circuit to strictly hold SSA to its own rules.

The CE confirmed that the claimant had significant orthopedic impairments and limitations, most especially that he needed a cane to stand/walk. The ALJ did not find this persuasive based on strained assertions of “inconsistency” in the report, and some latent lay analysis, and found that the claimant could perform medium work (the only exertion level, since the claimant was 55+, available as a basis to deny the claim).

With these facts, the Fourth Circuit held that when the ALJ orders a CE “it follows that an ALJ must engage in a simple § 404.1520b(b)(2) inquiry.” Since the purported insufficiency in the CE’s report could not be resolved and/or because the ALJ made no effort to resolve it, “the ALJ’s determination based only on the evidence that it possessed was woefully premature.”

Acknowledging that scheduling of a CE is a remedial action under the new regulations, the court nevertheless found that “to schedule such an examination only to immediately dismiss its results on easily curable grounds amounts to a halfhearted execution of regulations intended to discern the truth of one’s claim.”