handling, stooping, climbing, crawling, or crouching.”25 Pain can be an exertional limitation, nonexertional limitation, or both.26 If the claimant has significant nonexertional limitations, “a disability decision cannot be made solely on the basis of the vocational guidelines.”27 A thorough and attentive review of your client’s medical record by a knowledgeable attorney may reveal significant nonexertional limitations documented by medical personnel. In addition to those listed in the regulations and mentioned above, a few examples of nonexertional limitations recognized by courts include: (1) the need for a climate controlled work environment (e.g., for an amputee),28 (2) “breathing impairment[s]” that impact a claimant’s ability to work in climates involving “fumes . . . smoke, perfume, deodorant, and car exhaust,”29 (3) mental or psychological impairments,30 (4) sleep disorders including insomnia or the need to take naps during the day,31 (5) problems with adaptability and ability to handle changes in routine in the work environment,32 (6) alcoholism,33 (6) difficulties with traveling,34 and (7) “manipulation and stamina limitations.”35 Thus, credible nonexertional limitations in the medical record or reported by the claimant should be considered by the ALJ in making his or her RFC determination—otherwise, the RFC determination may not be considered substantial evidence, and the case may be subject to remand on appeal. Ensuring Accuracy of the Medical Record and Requiring a Properly Phrased, Accurate Hypothetical Question to the Vocational Expert in the RFC Determination Today’s electronic medical records (EMR) often contain inaccuracies that can affect disability determinations.36 To help avoid inaccuracies, the focus should generally be upon the opinions of physicians who specialize in the claimant’s area of alleged disability.37 For example, a cardiologist seeing a patient for a heart valve problem may sometimes mistakenly document a “normal gait” and “no back pain” even though the patient is simultaneously seeing an orthopedic surgeon for back pain and a related limp. Surprisingly, the ALJ may erroneously rely on the cardiologist’s note as evidence that the patient could walk normally and without back pain. Because the cardiologist focused on heart problems, not leg or back issues, his or her notations on gait and back pain should not be the focus of the ALJ’s evaluation. 36
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Further, the cardiologist’s note in the example above reflects a common problem in today’s EMRs—doctors understandably focus their limited time on patients’ complaints relevant to the particular office visit and, in generating the medical record, simply accept and sign the default boilerplate language generated in EMR software templates for issues irrelevant to the problem-at-hand that day.38 Unfortunately, this tendency creates inaccurate boilerplate entries in the medical record that can lead judges down the wrong road, so it is important to recognize and point out likely EMR errors. Luckily, many EMR inaccuracy issues are fairly easy to spot and can be exposed by pointing out signs such as: (1) the language is boilerplate with regard to a particular body part or symptom in a list; (2) the language is repetitive and does not change between clinic visits—even those months apart; (3) the record is more detailed and includes lists of more issues/body parts than the doctor could realistically evaluate in the time spent with the patient; (4) the report is contradicted by other doctors who were treating the patient more specifically for the issue of concern; and/ or (5) the language could apply to most any patient (i.e., it is not personalized). Attentive attorneys can argue that erroneous or inaccurate EMR entries should not be regarded as “substantial evidence” in disability determinations. Accuracy is especially important at the administrative hearing, because the ALJ’s hypothetical posed to the vocational expert must accurately reflect all of the claimant’s limitations. An ALJ “may rely on a vocational expert’s (VE) response to a properly formulated hypothetical question to . . . [show] that jobs exist in significant numbers which a person with the claimant’s [RFC] can perform.”39 “The point of the hypothetical question is to clearly present to the VE a set of limitations that mirror those of the claimant.”40 In order for a VE’s testimony to be considered “substantial evidence,” it must be “based on a properly phrased hypothetical question” that includes all of the claimant’s limitations (including exertional and nonexertional limitations) found credible by the ALJ.41 This is because “[u]nless the hypothetical question comprehensively describes the limitations on a claimant’s ability to function, a vocational expert will be unable to accurately assess whether jobs do exist for the claimant.”42 During cross-examination of the VE, any facts, claims, or limitations (including non-
exertional limitations) mentioned credibly in the medical record and excluded in the ALJ’s hypothetical should be added by the claimant’s attorney to the ALJ’s hypothetical and reposed to the VE for reconsideration of the claimant’s job prospects.43 If the VE’s opinion is averse to your client, his or her credibility should be probed on cross, while realizing the ALJ ultimately is entitled to substantial deference in his or her credibility determination of the VE.44 When doctors reach opinions in the medical record that are averse to your client, consider asking whether the doctor, like the VE, understood and considered all of the claimant’s limitations and whether the doctor had a conflict of interest. While a lack of medical restrictions is generally inconsistent with disability,45 a doctor’s failure to document disability does not necessarily mean that the physician determined that the patient was not disabled. Inquire whether the doctor was even asked about work status or disability. When a patient didn’t ask me for a work release, as an orthopedic surgeon specialist, I might assume either that another doctor was handling the patient’s work status or that the patient was unemployed. Also, ask whether the doctor was addressing all of the patient’s limitations, or only those limitations relevant to his or her medical specialty. While I was confident releasing patients back to work based upon the orthopedic problems that I was treating, usually I required that patients with other medical problems return to their primary care physician for a full release. Further, consider whether the patient brought up the subject of disability with his doctors because patients sometimes may not mention the subject due to the stigma associated with disability. However, be aware that a patient’s failure to seek any doctor’s advice regarding his medical complaints may be fatal to his disability claim.46 Finally, if a doctor’s opinion is averse to your client, consider that some doctors may have conflicts of interest that pressure them to document that a patient is ready for return to work—especially if that physician’s income is connected directly or indirectly to the patient’s employer. In my opinion, the most reliable method to assess a patient’s ability to return to his or her job—and to obtain an accurate RFC—is to send the patient to a physical therapy, occupational therapy, or rehabilitation center that specializes in performing RFC testing (a.k.a., “functional capacity evalu-