Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Murray v. Berryhill

United States District Court, D. Kansas

May 10, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.

         I. Background

         Plaintiff 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 administrative proceedings.

         The 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. 1988).

         The 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. 1989).

         The 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. Id.

         The 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).

         The 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.

         II. Whether the ALJ Properly Considered Plaintiff's Use of a Cane

         Plaintiff 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).

         Plaintiff 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 needed.

         The ALJ 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.