The opinion of the court was delivered by: WEBER
In this Social Security appeal, plaintiff is caught in a Catch 22 engineered by the Administrative Law Judge. Because the Administrative Law Judge's conduct constitutes an abuse of discretion in violation of the Secretary's regulations, which prevents a fair determination of plaintiff's disability claim, we will vacate the decision of the Secretary and remand.
Plaintiff is a 59 year old female, 5'5" and weighs 220 lbs. She suffers from degenerative arthritis of the hips, knees, hands, elbows, left ankle and toes of the left foot. Most severely afflicted are the right hip, left knee and right hand. Plaintiff also complains of lost strength and dexterity in her hands which her physician attributes to carpal tunnel syndrome.
Plaintiff claims that the arthritis seriously impairs her normal function. She is unable to walk without the aid of a walker. Her gait is very slow, guarded and painful. She is unable to sit or stand for long periods because she becomes stiff and the pain increases. She has difficulty sleeping because of the pain. Her treating physician reported that plaintiff was totally disabled.
The Administrative Law Judge concluded that plaintiff was not disabled, but rather was able to perform her past work as a telephone secretary. The Administrative Law Judge relied largely on the observation that plaintiff failed to submit sufficient objective medical evidence to substantiate her complaints. In the absence of such evidence the Administrative Law Judge discounted plaintiff's subjective complaints and the treating physician's report and denied disability.
Plaintiff avers that she has no health insurance, her husband is disabled and due to her indigency she cannot afford the x-rays and other diagnostic tests her doctor has prescribed. Plaintiff's counsel and her treating physician both informed the ALJ that the absence of x-rays and other tests was due entirely to plaintiff's inability to pay for those procedures. The Secretary has not disputed these averments.
In an effort to obtain supporting medical evidence, plaintiff requested a consultative examination at agency expense. The Secretary ordered an examination by Dr. Kahn who took only one x-ray of the right hip and submitted a report. Plaintiff has argued that this examination was inadequate for the purpose of assessing plaintiff's impairment and extent of disability.
Section 404.1517, 20 C.F.R., of the Secretary's Regulations provides in pertinent part:
§ 404.1517 Consultative examination at our expense.
(a) Notice of the examination. If your medical sources cannot give us sufficient medical evidence about your impairment for us to determine whether you are disabled or blind, we may ask you to have one or more physical or mental examinations or tests. We will pay for these examinations . . .
(b) Reasons why we may need evidence. We may need more medical evidence --
(1) To obtain more detailed medical findings about your impairment(s);
(3) To resolve conflicts or differences in medical findings or assessments in the ...