PATRICIA D. BARKSDALE, Magistrate Judge.
This is an action under 42 U.S.C. § 405(g) to review a final decision of the Commissioner of Social Security denying Anthony Hairston's claim for disability insurance benefits. He seeks reversal, Doc. 18; the Commissioner, affirmance, Doc. 23. He complains the Administrative Law Judge ("ALJ") incorrectly found a cane was neither prescribed nor medically necessary and as a result erroneously failed to include a related residual-functional-capacity limitation in the hypothetical to the vocational expert. Doc. 18 at 7-9.
Hairston was born in 1969. Tr. 166, 171. He is a high-school graduate. Tr. 31-32. He has worked as a cook, sorter, banquet supervisor, and forklift operator. Tr. 171. He alleges he became disabled and stopped working in June 2011, listing as impairments injuries to his neck, back, shoulder, and arm from a work-related accident, arthritis and pain in his lumbar spine, herniated nucleus pulposus in his cervical spine, carpal tunnel syndrome, and high blood pressure. Tr. 170. He is insured through 2016. Tr. 166. He proceeded through the administrative process, failing at each level. Tr. 1-4, 10-18, 89-91, 98-100. This case followed.
Hairston settled a worker's compensation claim resulting from the work-related accident. Tr. 163, 164.
A handwritten clinic note by Brandon Kambach, M.D., in September 2011 lists the word "cane" under a section titled "Plan of Care." Tr. 532. Typed treatment notes from that day do not mention a cane. Tr. 521-23. In January 2012, David Doward, M.D., observed Hairston walked with "a slow, but stable gait." Tr. 500.
On a "Florida Workers' Compensation Uniform Treatment/Status Reporting Form" completed in February 2012, Dr. Kambach marked a box next to "DME [durable medical equipment] or Medical Supplies" and wrote, "CANE." Tr. 857. The box was in a section titled, "MANAGEMENT TREATMENT PLAN," that included the statements, "The following proposed, subsequent clinical service(s) is/are deemed medically necessary," and "THIS IS A PROVIDER'S WRITTEN REQUEST FOR INSURER AUTHORIZATION OF TREATMENT OR SERVICES." Tr. 857. On a treatment note from that day, Dr. Kambach noted he gave Hairston "a prescription for a cane per his request." Tr. 482.
In March 2012, Hairston participated in a functional capacity evaluation. Tr. 450-56. The report states Hairston "performed with self[-]limited effort and with a high pain focus," he could perform "a minimum" of light work, he could stand frequently or continuously, he could walk occasionally, and he "demonstrated self[-]limited gait testing with cane ambulation preferred." Tr. 450-51, 456.
On a worker's compensation form signed by Dr. Kambach in July 2012, Dr. Kambach did not check the box next to "DME or Medical Supplies" and left the space next to it blank. Tr. 933.
In March 2013, Mark Hoffman, M.D., observed Hairston reported using a cane since 2011 and had come to the appointment with a cane but could walk with "a slight antalgic gait without his cane." Tr. 935, 937-38. That same month, based on a recent functional capacity evaluation, Dr. Kambach opined Hairston could frequently sit and occasionally stand and walk. Tr. 972.
In April 2013, Dr. Hoffman observed Hairston arrived with a cane but "was able to walk normally without" it. Tr. 934. In July 2013, he observed Hairston again had a cane but walked without it "slowly with an antalgic gait." Tr. 933. In October 2013, he observed Hairston walked "with a mild antalgic gait without his cane that he uses most of the time." Tr. 932. In January 2014, he observed Hairston brought a cane with him to the appointment but was able to walk without the cane "with a slow but stable gait." Tr. 1030.
At a May 2014 hearing before the ALJ, Hairston testified in pertinent part as follows. He can sit for about 15 or 20 minutes, he can stand for about 3 to 5 minutes, he can walk for about 5 to 10 minutes, and he has trouble climbing stairs. Tr. 42-43. On an ordinary day, his wife helps him out of bed, he does at-home physical therapy for about 20 minutes, and he exercises by walking on the street for about 20 minutes. Tr. 50. He uses a chair in the shower, and his wife helps him get dressed. Tr. 51. He makes simple meals, puts dishes in the dishwasher, and puts clothes in a washer and dryer. Tr. 52. He and his wife have a ministry, and he goes to church twice a week. Tr. 53. He has used a cane since 2011. Tr. 56. Sometime at the beginning of 2012, Dr. Doward prescribed a cane. Tr. 44-47. He walks with a limp and uses the cane every day. Tr. 56.
A vocational expert testified that Hairston had past relevant work as an industrial truck operator.
Tr. 61-62. The vocational expert opined the hypothetical individual could not work as an industrial truck driver but could work as a short-order clerk, routing clerk, and cashier II. Tr. 62.
In the second hypothetical, the ALJ asked the vocational expert to
Tr. 64. The vocational expert opined the hypothetical individual could work as an addresser, document preparer, and stuffer, and specified the number of such jobs available in the national economy. Tr. 64.
Hairston's counsel asked the vocational expert if the hypothetical individual could work in those jobs if also limited with the left hand to occasional simple grasping and fine manipulation. Tr. 66. The vocational expert opined the hypothetical individual could not. Tr. 66.
At step one,
At step two, the ALJ found Hairston suffers from severe impairments of degenerative disc disease, "left carpal tunnel release surgery," hypertension, and post-laminectomy syndrome. Tr. 12.
At step three, the ALJ found Hairston's impairments, individually or in combination, do not meet or medically equal the severity of any Listing of Impairments, 20 C.F.R. Part 404, Subpart P, App'x 1. Tr. 12.
The ALJ found Hairston has the residual functional capacity to perform sedentary work
Tr. 12-13. The ALJ observed he is right-hand dominant. Tr. 13.
The ALJ summarized the evidence. Tr. 13-17. She found Hairston's testimony about his symptoms and ability to function were "not entirely credible." Tr. 14. She included in the summary:
Tr. 16 (emphasis added). Elsewhere, she stated:
Tr. 17 (emphasis added).
At step four, the ALJ found Hairston has past relevant work as an industrial truck driver (Dictionary of Occupational Titles 921.683-050) performed at heavy strength and cannot perform that work. Tr. 17.
At step five, the ALJ found Hairston's past relevant work as an industrial truck driver was semi-skilled and required skills of "material working" and "industrial truck operator" but "there were no jobs provided at the sedentary exertional level for which there were transferable skills." Tr. 17. The ALJ then found, "Considering the claimant's age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy." Tr. 17. She continued, "The vocational expert was asked if any occupations exist which could be performed by an individual with the same age, education, past relevant work experience, and residual functional capacity as the claimant, and which require skills acquired in the claimant's past relevant work but no additional skills" and testified the individual could work as an addresser, document preparer, or stuffer." Tr. 18. The ALJ concluded, "Accordingly, although the claimant's additional limitations do not allow the claimant to perform the full range of sedentary work, considering the claimant's age, education and transferable work skills, a finding of "not disabled" is appropriate under the framework of Medical-Vocational Rule 201.29." Tr. 18.
A court's review of an ALJ's decision is limited to determining whether the ALJ applied the correct legal standards and whether substantial evidence supports his findings. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence is "less than a preponderance"; it is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. A court must affirm the decision if substantial evidence supports it, "[e]ven if the evidence preponderates against the . . . factual findings." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide facts anew, reweigh evidence, make credibility determinations, or substitute its judgment for the Commissioner's judgment. Moore, 405 F.3d at 1211.
Disability is 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 twelve months." 42 U.S.C. § 423(d)(1)(A).
A claimant has the burden of proving disability. 20 C.F.R. § 404.1512(a)(1). Thus, on an ongoing basis, he must inform the Social Security Administration ("SSA") of or submit all known evidence that relates to disability. Id. The evidence must be complete and sufficiently detailed to allow the SSA to determine if he is disabled. 20 C.F.R. § 404.1512(a)(2). If he does not provide the evidence the SSA needs and requests, the SSA will make a decision based on the available evidence. 20 C.F.R. § 404.1516.
Regardless of its source, the SSA "will evaluate every medical opinion" it receives. 20 C.F.R. § 404.1527(c). "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of . . . impairment(s), including . . . symptoms, diagnosis and prognosis, what [one] can still do despite impairment(s), and . . . physical or mental restrictions." 20 C.F.R. § 404.1527(a).
An ALJ is not required to "specifically refer to every piece of evidence in his decision, so long as the ALJ's decision . . . is not a broad rejection which is not enough to enable [a court] to conclude that [the ALJ] considered [the claimant's] medical condition as a whole." Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (internal quotation marks omitted). An erroneous factual statement by an ALJ may be harmless if the ALJ applies the proper legal standard. Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983); Majkut v. Comm'r of Soc. Sec., 394 F. App'x 660, 665 (11th Cir. 2010).
A claimant's residual functional capacity is the most he can still do despite his limitations. 20 C.F.R. § 404.1545(a)(1). The SSA will assess residual functional capacity based on all relevant evidence in the record and will consider all known impairments. 20 C.F.R. § 404.1545(a)(1) & (2). The SSA uses the residual functional capacity at step four to decide if a claimant can perform any past relevant work and, if not, at step five with other factors to determine if there is any other job in significant numbers in the national economy he can perform. 20 C.F.R. § 404.1545(a)(5).
The step-five determination may be accomplished by application of the grids or use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239-40 (11th Cir. 2004). The grids provide a claimant with an opportunity to qualify for benefits if his impairment does not meet the requirements of a listed impairment. Id. at 1240. They consider his age, exertional limitations, educational deficiencies, inability to speak English, and lack of job experience, and direct "a statutorily-required finding" of disabled or not disabled. Id. Although the "general rule is that after determining the claimant's residual functional capacity and ability or inability to return to past relevant work, the ALJ may use the grids" to determine if the claimant can perform other jobs, id. at 1242, "exclusive reliance on the grids is not appropriate either when [the] claimant is unable to perform a full range of work at a given residual functional level or when [the] claimant has non-exertional impairments that significantly limit basic work skills," id. (quoted authority omitted; emphasis in Phillips). If either circumstance exists, the ALJ must consult a vocational expert. Id.
If a claimant has both exertional and nonexertional limitations from his impairments, the grids "are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone." 20 C.F.R. Part 404, Subpart P, App'x 2, § 200.00(e)(2). If not, they "provide a framework for consideration of how much the individual's work capability is further diminished" by the limitations. Id.
"Skills and their transferability relate to `work experience' . . . [and] people's abilities to do occupations different from those they did before becoming impaired." Social Security Ruling 82-41. Skill transferability is an issue if an impairment does not meet or equal a listed impairment but prevents the performance of skilled or semiskilled past relevant work. In a "relatively few" instances, skill transferability will decide if a claimant is disabled. Id. If skill transferability is an issue and the ALJ finds that the claimant has a transferable skill, the ALJ must identify in the written decision the skill and the job to which the skill is transferable. Id. at *7. "Transferability"—as distinct from using a skill recently learned in school— means "applying work skills which a person has demonstrated in vocationally relevant past jobs to meet the requirements of other skilled or semiskilled jobs." Id.
Under the grids, a younger individual (18 to 44) who is limited to sedentary work, has at least a high-school education, and has a history of skilled or semiskilled work will be found not disabled regardless of whether his skills are transferable. 20 C.F.R. Part 404, Subpart P, App'x 2 §§ 201.28, 201.29.
For a vocational expert's testimony to be substantial evidence, the hypothetical posed must include all of the claimant's impairments. Winschel v. Comm'r, 631 F.3d 1176, 1180 (11th Cir. 2011).
According to a Social Security Ruling ("SSR") and a provision in the Program Operations Manual System ("POMS"),
SSR 96-9p
In complaining the ALJ incorrectly found a cane was neither prescribed nor medically necessary and as a result erroneously failed to include a related residual-functional-capacity limitation in the hypothetical to the vocational expert, Hairston points to the form Dr. Kambach signed in February 2012 indicating a cane was medically necessary and requesting insurer authorization for it, Tr. 857, and Hairston's testimony his wife helps him get out of bed, he cannot stand in the shower, he has pain down the right leg, and he uses the cane every day. Doc. 18 at 8-9.
The Commissioner responds substantial evidence supports the residual-functional-capacity determination, pointing to the initial appointment following the accident in June 2011 and appointments during 2011, 2012, 2013, and 2014, at which no cane was prescribed and he was released to return first to part-time work and then to full-time work with no restriction concerning the use of a cane. Doc. 23 at 6-10. The Commissioner observes the form Dr. Kambach signed in February 2012 is not a treatment or progress note, Dr. Kambach does not state he is prescribing a cane for Hairston, and Dr. Kambach does not reference treatment notes prescribing a cane, and the Commissioner supposes "it may have simple [sic] reflected Plaintiff's subjective complaint to Dr. Kambach that he needed a cane." Doc. 23 at 11. The Commissioner adds the July 2012 form Dr. Kambach signed did not include the same mark or notation, suggesting a cane was no longer medically necessary. Doc. 23 at 12.
The ALJ's finding that no physician prescribed use of a cane was wrong. Though the February 2012 worker's compensation form does not necessarily suggest Dr. Kambach prescribed a cane at that time, see Tr. 857, a treatment note from that day states he gave Hairston "a prescription for a cane per his request," see Tr. 482. Nevertheless, the ALJ's error was harmless because she applied the proper legal standard, and substantial evidence supports her finding that a cane was not medically necessary. The February 2012 treatment note showing Dr. Kambach's prescription of a cane indicates he gave the prescription based on Hairston's request and not based on an opinion he needed one, see Tr. 482, indicating the statement on the worker's compensation form that a cane was medically necessary was to obtain insurer authorization for the cane. The ALJ described other evidence supporting the finding Hairston did not need a cane. Treatment notes show Hairston walked normally, with a slow but stable gait, or with an antalgic gait without a cane. See Tr. 500, 932-34, 938, 1030. A March 2012 functional capacity evaluation states Hairston "performed with self[-]limited effort and with a high pain focus," he could perform "a minimum" of light work, he could stand frequently or continuously, he could walk occasionally, and he "demonstrated self[-]limited gait testing with cane ambulation preferred." Tr. 450-51, 456. And in March 2013, Dr. Kambach opined Hairston could frequently sit and occasionally stand and walk. Tr. 972. He did not mention any need for a cane.
Other records mention Hairston's use of a cane, but they do not undermine the ALJ's finding. A handwritten clinic note by Dr. Kambach from September 2011 simply lists the word "cane," see Tr. 532; it is unclear whether that reflects Dr. Kambach's opinion Hairston needed one or just Hairston's request for one. Typed treatment notes from the same day do not mention a cane, though they mention all other prescribed or recommended treatment listed in the clinic note, including medication and physical therapy. See Tr. 521-23. Other treatment notes show doctors had observed Hairston using a cane, see Tr. 932-35, 937, 1030, but those observations are not evidence a cane was medically necessary, and the notes reflect that he could walk without one. None of the medical records mentioning Hairston's use of a cane describe the circumstances in which Hairston would need to use one. Likewise, though Hairston testified at the hearing that he walks with a limp and uses the cane every day, he provided no testimony concerning the circumstances under which he uses a cane and whether he needs it at all times. Tr. 56.
Because substantial evidence supports the ALJ's finding a cane was not medically necessary, she did not have to include a limitation concerning use of a cane in the residual-functional-capacity finding.
The Court affirms the Commissioner's decision and directs the clerk to enter judgment in favor of the Commissioner and close the file.
Dictionary of Occupational Titles 921.683-050.
