United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance Benefits (DIB) and Supplemental Security Income
(SSI) benefits pursuant to sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act, 42 U.S.C.
§§ 416(i), 423, 1381a, and 1382c(a)(3)(A)
(hereinafter the Act). Finding no error, the court ORDERS
that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING the
Commissioner's final decision.
argues that the Administrative Law Judge (ALJ) erred in
finding Plaintiff has skills which are transferable to a job
which does not exist in significant numbers, and inadequately
explained his finding that Plaintiff's use of a cane is
not medically necessary. He seeks remand for further
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section
405(g) of the Act provides that in judicial review
“[t]he findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must
determine whether the ALJ's factual findings are
supported by substantial evidence in the record and whether
he applied the correct legal standard. Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007);
accord, White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
court may “neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec'y of Health & Human Servs.,
933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). Nonetheless, the determination whether substantial
evidence supports the Commissioner's decision is not
simply a quantitative exercise, for evidence is not
substantial if it is overwhelmed by other evidence or if it
constitutes mere conclusion. Gossett, 862 F.2d at
804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §
404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139
(10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d
748, 750 (10th Cir. 1988)). “If a determination can be
made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps,
the Commissioner determines whether claimant has engaged in
substantial gainful activity since the alleged onset, whether
he has a severe impairment(s), and whether the severity of
his impairment(s) meets or equals the severity of any
impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51.
After evaluating step three, the Commissioner assesses
claimant's residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four
and step five of the sequential evaluation process.
Commissioner next evaluates steps four and five of the
sequential process--determining at step four whether,
considering the RFC assessed, claimant can perform his past
relevant work; and at step five whether, when also
considering the vocational factors of age, education, and
work experience, claimant is able to perform other work in
the economy. Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In steps one through four
the burden is on Plaintiff to prove a disability that
prevents performance of past relevant work. Blea v.
Barnhart, 466 F.3d 903, 907 (10th Cir. 2006);
accord, Dikeman v. Halter, 245 F.3d 1182,
1184 (10th Cir. 2001); Williams, 844 F.2d at 751
n.2. At step five, the burden shifts to the Commissioner to
show that there are jobs in the economy which are within the
RFC assessed. Id.; Haddock v. Apfel, 196
F.3d 1084, 1088 (10th Cir. 1999).
court considers the issues in the order they would be reached
in applying the sequential evaluation process, and finds no
error in the ALJ's decision.
Whether the ALJ Properly Considered Plaintiff's Use of a
points out that where a claimant needs an assistive device
such as a cane, the RFC assessed must account for that need.
(Pl. Br. 8). He argues that he uses a cane and that he has
been prescribed a cane, but that the ALJ erred in finding
that a cane is not necessary. Id. at 9-12. He argues
that in doing so, the ALJ improperly substituted his medical
judgment for that of Plaintiff's treating physician.
Id. at 12. The Commissioner argues that “the
ALJ adequately explained why he found the use of a cane was
not medically necessary, ” and that he may rely on the
record evidence to discount a medical opinion that use of a
cane is necessary. (Comm'r Br. 6). In his Reply Brief,
Plaintiff argues that the Commissioner's argument in this
regard is impermissible post hoc rationalization
because “[t]he ALJ made a very succinct analysis with
respect to the medical necessity of a cane in this case and
cited very specific pages of the medical record to support
his decision, none of which were those cited in the
Defendant's brief.” (Reply 3) (citing R. 31).
is correct that where the use of a cane is medically
necessary, the ALJ must account for that use in the RFC
assessed. Staples v. Astrue, 329 Fed.Appx. 189, 191-
92 (10th Cir. May 19, 2009) (citing Soc. Sec. Ruling
(SSR) 96-9p 1996 WL 374185 at *7). But, as the opinion in
Staples points out, medical necessity is shown only
where the claimant presents “medical documentation
establishing the need for a hand-held assistive device . . .
and describing the circumstances for which it is
needed.” Id. at 191 (quoting SSR. 96-9p).
Here, Plaintiff has not met the standard. While the record
contains evidence that Plaintiff was prescribed a cane and
was observed at times to use a cane, or to have an antalgic
gait, there is no evidence establishing that he needs to use
a cane all the time, or the circumstances for which it is
discussed Plaintiff's walking abilities extensively
throughout his decision. (R. 21, 24-29, 31) (summarizing the
record evidence and discussing, variously, use of a cane or
assistive device, gait, ambulation, walking, assistance).
Then, as Plaintiff suggests in his Reply Brief, the ALJ made
a very succinct conclusion regarding the medical necessity
for a cane:
I do not find that a cane is necessary. While the claimant
was noted to have a cane on November 9, 2012 (Exhibit 17F,
page 56), one month later his gait was non-antalgic (Exhibit
15F, page 3). He was then prescribed a cane on March 5, 2013
(Exhibit 12F, page 26), but gait was normal on July 15, 2013
(Exhibit 17F, page 48), September 18, 2013 (Exhibit 17F, page
41), October 11, 2013 (Exhibit 16F, page 28), December 14,
2013 (Exhibit 17F, page 32), April ...