REPORT AND RECOMMENDATION
SUZANNE MITCHELL, Magistrate Judge.
Jeff Adams (Plaintiff) brings this action for judicial review of the Defendant Acting Commissioner of Social Security's (Commissioner) final decision that he was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Scott L. Palk referred this matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 14. Following a careful review of the parties' briefs, the administrative record (AR),1 and the relevant authority, the undersigned recommends the court affirm the Commissioner's decision.
I. Administrative determination.
A. Disability standard.
The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that he can no longer engage in his prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge (ALJ) findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis in order to decide whether Plaintiff was disabled during the relevant timeframe. AR 15-30; see 20 C.F.R. § 416.920(a); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found:
> (1) that Plaintiff had not engaged in substantial gainful activity since February 19, 2015, the application date;
(2) Plaintiff's severe impairments include left knee impairment (status post-surgery 2012; left ankle impairment (status post-surgery 2015); left foot drop; and obesity;
(3) Plaintiff does not have an impairment or combination of impairments that meets or equals the severity of one of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1;
(4) Plaintiff has the residual functional capacity (RFC)2 to perform sedentary work with additional non-exertional limitations;
(5) Plaintiff could not perform his past relevant work as a bar manager or bartender;
(6) Plaintiff could perform other jobs existing in significant numbers in the national economy including food and beverage order clerk, call out operator, and ticket counter; and
(7) Plaintiff had not been disabled, as defined in the Social Security Act at any time since February 19, 2015.
AR 19-30.
2. Subsequent procedural history.
Plaintiff appealed the ALJ's unfavorable decision to the Appeals Council. The Appeals Council denied Plaintiff's request for review, and the ALJ's August 10, 2016 decision stands as the final agency decision. See 20 C.F.R. § 422.210(a); see also Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). In applying that standard, the court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks omitted).
B. Issues for judicial review.
Plaintiff contends the ALJ (1) failed to include in the RFC all limitations found by the consultative examiner; and (2) the ALJ erred in analyzing the Listings. Doc. 17, at 6-21.
1. The ALJ's consideration of the findings of the consultative examiner.
Plaintiff contends the ALJ erred by excluding from the RFC some of the "findings" included in the report of the consultative examiner, Dr. Raymond Azadgoli. Doc. 17, at 6-7. Plaintiff argues Dr. Azadgoli's observation that Plaintiff walked slowly with an antalgic gait should have been included in the RFC. Id. at 7.
The ALJ thoroughly discussed all the evidence of record relating to Plaintiff's ability to ambulate. For example, in March 2014, at a visit with a nutritionist, Plaintiff reported he was "[g]ood for 2 hours of walking." AR 319. The same month, his physical therapist, Dr. Albert O. Gee, wrote:
He is wondering if he can go back to work, which I think he can. He needs to find a job; however, [that] will accommodate his weightbearing issues and pain symptoms that arise after 2 hours. Otherwise, he can do any job that does not require too much heavy lifting because I believe this will also aggravate his knee considerably.
Id. at 331.
On June 16, 2014, Plaintiff reported that he generally walked three-to-four blocks three times per week. Id. at 296. Plaintiff testified that he needed a cane if he walked for a long time in a store, but he acknowledged he only used the cane periodically. Id. at 51-52.
The ALJ considered Dr. Azadgoli's consultative-examination report, noting his observation that Plaintiff walked without assistive devices at a slow speed with an antalgic gait. Id. at 28, 360. Dr. Azadgoli assessed Plaintiff with "[l]eft knee and ankle pain," which the ALJ noted. Id. But these observations regarding Plaintiff's gait do not constitute a "medical opinion" about any resulting functional limitations. See 20 C.F.R. § 416.927(a)(1) ("Medical opinions are statements from acceptable medical sources that reflect judgments about your impairment(s) including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical and mental restrictions.").
Plaintiff further contends the ALJ erred in failing to give reasons why Dr. Azadgoli's opinion was not given "controlling weight." Doc. 17, at 8-9. Plaintiff misapprehends the applicable regulations.3 He believes those regulations require an ALJ to consider whether a consulting-examiner's opinion should be given "controlling weight." Id. at 8. He is incorrect. Under these regulations, only a treating-physician's opinion is entitled to controlling weight:
The initial determination the ALJ must make with respect to a treating physician's medical opinion is whether it is conclusive, i.e., is to be accorded controlling weight, on the matter to which it relates.
Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011) (emphasis added) (internal quotation and citation omitted). Thus, the consultative examiner's findings and opinions are not entitled to the presumption of controlling weight.4 Of course, "[i]t is the ALJ's duty to give consideration to all the medical opinions in the record. He must also discuss the weight he assigns to such opinions," including the opinions of state-agency medical consultants. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted).
The ALJ recognized her duty to both consider and weigh Dr. Azadgoli's findings:
As with all nontreating source medical opinions, the weight to which the medical opinion will be entitled depends on the consistency of the opinion with other evidence; the qualifications of the source; and the degree to which the source offers supporting explanations for the opinion.
AR 28.
The ALJ gave "[m]oderate weight" to Dr. Azadgoli's findings. Id. In her RFC determination, the ALJ limited Plaintiff to sedentary work with additional limitations. She stated he could rarely climb ramps and stairs; that he should avoid climbing ladders, ropes and scaffolds; that he could only occasionally crouch; that he should avoid kneeling and crawling; and that he could only occasionally use the left lower extremity for foot controls. Id. at 23. Although Plaintiff contends his slow pace would "make him a slower worker when standing and walking and carrying in the workplace, even in sedentary work," nothing in the record supports an inference that his slower gait would prevent him from walking and standing the two hours per day associated with sedentary work. See Doc. 17, at 7.
Moreover, "there is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question. "`[T]he ALJ, not a physician, is charged with determining a claimant's RFC from the medical record.'" Chapo v. Astrue, 682 F.3d 1285, 1288-89 (10th Cir. 2012) (quoting Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) ("We have thus `rejected [the] argument that there must be specific, affirmative, medical evidence on the record as to each requirement of an exertional work level before an ALJ can determine RFC within that category.'")). The ALJ's RFC determination is well-supported by evidence in the record and Plaintiff's testimony. Contrary to Plaintiff's assertion, the ALJ did not err in her consideration of the consultative examiner's report.5
2. Analysis of the Listings.
Plaintiff contends the ALJ failed to properly consider the requirements for meeting a Listing.6 The ALJ considered the Listings at 1.02, "Major dysfunction of a joint(s) (due to any cause)," and 1.03, "Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint." AR 22-23 (emphases omitted). Both Listings require an inability to ambulate effectively, "as defined in 1.00B2b," and Listing 1.03 also includes a requirement that "return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset." See id. (quoting Listings 1.02 & 1.03).
Plaintiff's argument focuses on the duration requirement of Listing 1.03. Plaintiff contends the ALJ erred in failing to consider the fact that Plaintiff was, as the medical record demonstrates, unable to effectively ambulate for a full thirteen months after his 2013 surgery:
The ALJ notes hearing testimony in her decision that Mr. Adams was "unable to walk for 13 months" after the injury to his left ankle. AR 24. However, in the analysis of the 1.0 listings she makes no finding of meeting or equaling the listings. She writes that "he returned to weight-bearing and can effectively ambulate." AR 23. But, that is not the correct test; she left off the "within 12 months" part of the listing.
Doc. 17, at 13.
Plaintiff contends the ALJ found that he met the "severity requirements" for the Listing but erred in failing to find him eligible for a "closed[]period" of disability to which, he contends, he was entitled.7 Id. at 12. Plaintiff is mistaken. Plaintiff applied solely for supplemental security income (SSI);8 claimants cannot receive SSI payments retroactively when they are found not to be disabled on the application date:
Onset will be established as of the date of filing provided the individual was disabled on that date. Therefore, specific medical evidence of the exact onset date need not generally be obtained prior to the application date since there is no retroactivity of payment because title XVI payments are made beginning with the date of application provided that all conditions of eligibility are met.
Titles II & XVI: Onset of Disability, SSR 83-20 (S.S.A. 1983). Because the ALJ found Plaintiff did not meet all the conditions of eligibility for SSI payments on the application date—that is, he could effectively ambulate on the date he filed his application for SSI—the ALJ could not rely on a twelve-month period ending over one year before Plaintiff filed his application to meet the duration requirement of Listing 1.03. See also 20 C.F.R. § 416.335 ("When you file an application in the month that you meet all the other requirements for eligibility, the earliest month for which we can pay you benefits is the month following the month you filed the application."). In his application, Plaintiff initially listed his disability onset date as March 18, 2013, which corresponds to the date of his accident. See AR 159. At the administrative hearing, however, the ALJ and Plaintiff's attorney agreed the regulations required amendment of the onset date to February 19, 2015, the date Plaintiff actually applied for SSI. Id. at 42.
Plaintiff briefly states the ALJ erred in failing to address whether Plaintiff could "ambulate effectively over distance without a cane or crutch during the dispositive period." Doc. 17, at 20. Plaintiff's definition of "dispositive period" is unclear, but he contends the ALJ should have included his possible need to use a cane "for swelling and long distances" in the RFC. This argument lacks merit.
The regulations explain that "[t]o ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living." 20 C.F.R. Part 404, Subpt. P, App. 1 § 1.00(2)(b)(2) (italics omitted). The regulations further provide that "examples of ineffective ambulation include . . . the inability to walk without the use of a walker, two crutches or two canes, [and] the inability to walk a block at a reasonable pace on rough or uneven surfaces." Id.
Murdock v. Astrue, 458 F. App'x 702, 704 (10th Cir. 2012) (emphasis added). In Murdock, the ALJ concluded the claimant could perform sedentary work even though she might need to use a walker if she walked more than 100 feet. Id. at 704-05. The Tenth Circuit reversed the ALJ's decision because the regulations specify that the need to use a walker a relatively short distance negates the ability to "ambulate effectively." See id. But in this case, the ALJ's statement that Plaintiff might need to use "a cane," see AR 24, does not constitute the inability to ambulate effectively. The regulation's examples of ineffective ambulation specify the need to use a walker, two crutches or two canes. 20 C.F.R. Part 404, Subpt. P, App. 1 § 1.00(2)(b)(2). The ALJ did not err in failing to include in the RFC the Plaintiff's possible need to use one cane when walking for long distances. The Commissioner's final decision should be affirmed.
III. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the entry of judgment affirming the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by July 9, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
