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A longshoreman will have another chance to prove he was unable to work after surveillance video led an administrative law judge to question his credibility, an appellate court ruled Friday.
In Jordan v. SSA Terminals LLC, the 9th U.S. Circuit Court of Appeals in San Francisco unanimously reversed and remanded an administrative law judge’s ruling that the worker failed to show he was unable to work after determining the judge applied an “improperly high standard.”
Anthony Jordan worked for Long Beach, California-based logistics and transportation company SSA Terminals LLC, driving a tractor to move cargo containers. He also owned and operated a small landscaping business on the side.
On Sept. 17, 2014, the tractor Mr. Jordan was driving was lifted and dropped by a crane. He suffered extensive injuries, including herniated discs, stenosis and nerve impingement in his lower back. He was treated with medication and physical therapy but continued to complain of pain, spasms and numbness in his legs.
He filed a claim for benefits under the Longshore and Harbor Workers Compensation Act, which was granted, and SSA and its insurer deemed Mr. Jordan totally disabled.
However, the insurer recorded surveillance of Mr. Jordan in 2015 and 2016, showing him carrying objects, tossing a baseball, doing push-ups and attending sporting events where he appeared to sit and stand for long periods without difficulty. An administrative law judge was assigned to determine whether Mr. Jordan was disabled between April 2016 and March 2018.
Mr. Jordan’s doctor stated that he was unable to work as a longshoreman because he could not work an eight-hour day and that “bouncing around in a truck” would “accelerate” the damage he already had in his back. However, he acknowledged that Mr. Jordan could work about five hours a day with limitations at his landscaping business so long as he could take breaks to lie down.
Physicians who examined Mr. Jordan for SSA, however, said that he could return to work with restrictions; after viewing the surveillance videos, they said it appeared he could work without restrictions.
The ALJ held that Mr. Jordan failed to show he was totally disabled, and a review board affirmed the decision.
Mr. Jordan petitioned the appellate court for review, and the court reversed and remanded the case on the basis that the ALJ applied an “improperly high standard” to Mr. Jordan’s claim, finding that the ALJ’s opinion showed that he believed Mr. Jordan had to establish that it was “literally impossible” for him to do his past work.
The appellate court ordered the ALJ to determine whether Mr. Jordan’s complaints of pain were credible and, if so, then decide whether the pain significantly affected his ability to do his past work.