                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 13-3473
RANDY HANSON,
                                                 Plaintiff-Appellant,

                                 v.

CAROLYN W. COLVIN, Acting Commissioner of Social
 Security,
                                     Defendant-Appellee.
                     ____________________

        Appeal from the United States District Court for the
                    Eastern District of Wisconsin.
       No. 2:12-cv-00822-CNC — Charles N. Clevert, Jr., Judge.
                     ____________________

        ARGUED JULY 9, 2014 — DECIDED JULY 30, 2014
                     ____________________

   Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
    POSNER, Circuit Judge. The plaintiff, a former laborer, ap-
plied for social security disability benefits, claiming to be
unable to work a full 40-hour week because of acute lower
back pain that radiates into his right leg. He has had a varie-
ty of treatments and takes a number of medications such as
oxycodone and percocet, but the treatments and medications
give him, he claims, only limited relief. His application was
2                                                  No. 13-3473


denied; the Appeals Council of the Social Security Admin-
istration affirmed the denial on the basis of the administra-
tive law judge’s reasoning and the district court, to which
the applicant turned for relief, also affirmed, precipitating
this appeal.
    The case comes down to what the administrative law
judge thought, probably erroneously, was a disagreement
between two physicians whose examination reports were
submitted in the administrative proceeding. One was a neu-
rologist named Virendra Misra who diagnosed the plaintiff
with severe radiculopathy (a nerve disorder that causes ra-
diating pain), and concluded that the plaintiff would not be
able to tolerate more than four hours of working a day,
which if true would make him totally disabled within the
meaning of the Social Security Act and therefore entitled to
the disability benefits that he is seeking. The other physician,
David DeWitt (consistently misspelled “Dewitt” in the ad-
ministrative law judge’s opinion), a consulting rather than
treating physician (oddly, the administrative law judge did
not mention what DeWitt’s medical specialty is–he is an or-
thopedic surgeon), examined the plaintiff only once. While
agreeing that the plaintiff had radiculopathy, DeWitt did not
state that the condition was so severe as to prevent him from
being able to work. He did however say that the plaintiff
“should avoid prolonged standing, walking and sitting ac-
tivities, unless these can be performed with frequent breaks
as the symptoms dictate.”
     The administrative law judge thought well of DeWitt but
ill of Misra, about whom he said that “the objectivity of that
doctor is brought into question, particularly when he was
willing to offer such extreme estimates after conceding that
No. 13-3473                                                   3


he had only seen claimant twice for relatively short cursory
exams. Though he is a neurologist, his statements that
claimant had severe radiculopathy are not objectively sup-
ported by a majority of the records in the file, including the
objective evidence—x-rays and the MRI scan—both of which
failed to show any nerve root impingement or disc herni-
ation. The fact that he has shown no interest in confirming
claimant’s subjective complaints with actual testing (i.e. an
EMG-nerve conduction velocity study) also seems strange,
particularly if claimant is in the extreme degree of pain he
claims to be.” The administrative law judge was very critical
of the fact that Dr. Misra’s treatment notes “border on being
illegible and offer little information,” and that “there is no
indication that Dr. Misra sought any type of diagnostic
study to determine whether there [sic] surgery was a viable
option.” He said that he “accords Dr. Misra’s two opinions
little weight for the reasons stated above, most notably the
limited treating history, the lack of objective evidence sup-
porting the doctor’s restrictive limitations, and the lack of an
explanation that would reconcile the difference between the
objective and subjective evidence.”
    Turning to Dr. DeWitt’s evidence, the administrative law
judge said that “the most detailed physical examination re-
port comes from Dr. David Dewitt. … [T]here was a clear
subjective element to claimant’s presentation, the physician
[DeWitt], for example, commenting that sensation was intact
to light touch in all dermatomes, but there was a ‘subjective’
decrease [in] sensation over the lateral aspect of the right
foot and calf. … The undersigned accords Dr. Dewitt’s opin-
ions significant weight.”
4                                                  No. 13-3473


    A dermatome is an area of skin in which the sensory neu-
rons all come from a single nerve. The administrative law
judge may have thought that when DeWitt said that “sensa-
tion was intact to light touch in all dermatomes,” he was
denying that the plaintiff had radiculopathy. But pain,
weakness, or decreased deep-tendon reflexes may be evi-
dence of damage to the root of the nerve and therefore sup-
port a diagnosis of radiculopathy—and DeWitt’s examina-
tion report, in a section headed “Impressions,” states that the
plaintiff does in fact have radiculopathy.
    The administrative law judge thought DeWitt’s report re-
futed Misra’s finding, based on an MRI, that the pain and
numbness in the plaintiff’s leg were caused by nerve-root
damage. But apart from the fact that what was relevant was
not the cause of the pain and numbness but the severity of
these symptoms and whether they disabled the plaintiff
from working full time, there was no inconsistency in the
diagnoses. DeWitt found decreased sensation in the same leg
in which Misra, on the basis of the MRI, found decreased
sensation.
    The administrative law judge may have been misled by
DeWitt’s use of the word “subjective,” which he seems to
have thought meant that DeWitt believed the plaintiff was
malingering. Nowhere did DeWitt suggest he thought this
or that there was any discrepancy between his findings and
the plaintiff’s own description of his symptoms. In stating
that while “sensation is intact to light touch in all derma-
tomes of the bilateral lower extremities … [the plaintiff] has
subjective decreased sensation over the lateral aspect of the
right calf as well as the lateral aspect of the right foot,” and
in concluding that the plaintiff “clearly has subjective de-
No. 13-3473                                                    5


creased sensation,” DeWitt was saying that plaintiff had
numbness in his leg despite the absence of the specific symp-
tom of an unhealthy sensation in his dermatomes. As near as
we can determine, he meant that while the patient can feel
light touches everywhere on his leg, he has decreased sensa-
tion in his right calf and foot, relative either to his left calf
and foot or to what is normal.
     In addition, in contrast to what the administrative law
judge reported, DeWitt said that “an MRI showed two disc
herniations as well as some scoliosis in [the plaintiff’s] lum-
bar spine.” He said that “a repeat MRI would be of signifi-
cant benefit if [the plaintiff] has not had one in the recent
past as well as a repeat evaluation for a [sic] possible epidur-
al injections or possible surgical intervention for decompres-
sion.” And he concluded as we said by stating that the plain-
tiff “should avoid prolonged standing, walking and sitting
activities, unless these can be performed with frequent
breaks as the symptoms dictate.” This leaves entirely unclear
how many hours in a day DeWitt thought that the plaintiff
could work, and therefore what basis the administrative law
judge had for concluding that the plaintiff could perform his
“past relevant work” and therefore was not permanently
disabled. Social Security Ruling 96-8p, 1996 WL 374184; Mel-
ville v. Apfel, 198 F.3d 45 (2d Cir. 1999).
    Notice that although the administrative law judge was
critical of Misra for not ordering a nerve conduction study,
DeWitt didn’t recommend such a study. And we repeat that
although the judge said that the MRI had not revealed any
disc herniation, DeWitt said it had.
   The administrative law judge was skeptical about Misra’s
report but should have been skeptical of DeWitt’s as well,
6                                                    No. 13-3473


not because there appears to be anything wrong with
DeWitt’s analysis (or for that matter Misra’s, except poor
handwriting) but because there is nothing in it on which a
finding that the plaintiff is not totally disabled could be
based. Both physicians diagnosed radiculopathy. Misra
thought it severe; DeWitt did not indicate how severe he
thought it but neither did he indicate that he thought it not
severe. Although a finding of total disability could thus well
be based on the reports considered together, there is enough
uncertainty to warrant the administrative law judge, if he
remains skeptical of the plaintiff’s claim, to order a further
examination of the plaintiff by a qualified physician in-
structed to offer a medical opinion (if possible) on the plain-
tiff’s physical ability to engage in full-time work. If the judge
does that, he should probably ask the physician to testify as
well as to submit a written report, in order to enable clarifi-
cation of his opinion through questioning by counsel and the
administrative law judge. What is clear is that the rejection
of the disability claim, based as that rejection was primarily
on the DeWitt report, cannot be said to be supported by sub-
stantial evidence on the basis of the record compiled to date.
     The government argues that an alternative ground of af-
firmance is that the administrative law judge expressed
skepticism concerning the credibility of the plaintiff’s testi-
mony about his pain and numbness and resulting inability
to work. But the administrative law judge did not base his
decision on a credibility determination, and “Chenery re-
quires that an agency’s discretionary order be upheld, if at
all, on the same basis articulated in the order by the agency
itself.” Burlington Truck Lines, Inc. v. United States, 371 U.S.
156, 168–69 (1962). That is a rule of particular application to
this case, for if the plaintiff’s condition is as serious as Misra
No. 13-3473                                                    7


found, and if as appears there is no serious disagreement be-
tween him and DeWitt, there is no basis for doubting that
the plaintiff was credible.
    Suppose a neurologist examined a patient and deter-
mined that he was a paraplegic as a result of his spine hav-
ing been severed in an accident. And suppose the patient,
seeking social security disability benefits, testified that he
couldn’t walk. It would be absurd for the administrative law
judge to deny benefits because he thought the plaintiff a
nervous, hesitant witness and was confident that the testi-
mony of such a witness is never truthful. And more absurd
for us to sustain the denial of benefits on the basis of that
credibility determination.
    We are particularly concerned about the Chenery viola-
tions committed by the government because it is a recurrent
feature of the government’s defense of denials of social secu-
rity disability benefits, as this court has noted repeatedly.
See, e.g., Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014);
Hughes v. Astrue, 705 F.3d 276, 279 (7th Cir. 2013); Kastner v.
Astrue, 697 F.3d 642, 648 (7th Cir. 2012); Shauger v. Astrue,
675 F.3d 690, 697 (7th Cir. 2012); Martinez v. Astrue, 630 F.3d
693, 698 (7th Cir. 2011); Spiva v. Astrue, 628 F.3d 346, 348 (7th
Cir. 2010); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir.
2010); Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010);
McCleskey v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010); Parker v.
Astrue, 597 F.3d 920, 922 (7th Cir. 2010). This is professional
misconduct and if it continues we’ll have to impose sanc-
tions.
    The judgment is reversed and the case remanded to the
district court with instructions to remand to the Social Secu-
rity Administration.
