T. LANE WILSON, District Judge.
Plaintiff Jack Smith seeks judicial review of the decision of the Commissioner of the Social Security Administration denying his claim for Supplemental Security Income ("SSI") payments under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. § 1382c(a)(3). In accordance with 28 U.S.C. § 636(c)(1) & (3), and Fed. R. Civ. P. 73, the parties have consented to proceed before a United States Magistrate Judge. (Dkt. 14). Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence.
Plaintiff, then a fifty-one year old male, applied for Titles II and XVI benefits on March 28, 2012. (R. 189-97; 198-201). He alleged a disability onset date of January 1, 2000. (R. 189; 198). Plaintiff claimed that he was unable to work due to problems with his back, knee, and shoulder; spinal stenosis; memory loss and concentration problems; depression and anxiety. (R. 210). Plaintiff's claims for benefits were denied on November 28, 2012, and were denied again on May 9, 2013. (R. 86, 87, 138-45; 134, 135, 147-52). Plaintiff requested a hearing before an administrative law judge ("ALJ"). The ALJ held the hearing on November 19, 2013. (R. 26-53). During the hearing, plaintiff amended his alleged onset date to March 6, 2012, effectively withdrawing his Request for Hearing on Title II benefits. (R. 29-30). The ALJ issued a decision on January 16, 2014, denying plaintiff's claim for benefits. (R. 7-24). The Appeals Council denied review, and plaintiff appealed. (R. 1-5; dkt. 2).
Plaintiff has not performed any substantial gainful activity since March 6, 2012, his alleged onset date, and he has the following severe impairments: "degenerative disc disease of the lumbar spine, fragmented tibial tuberosity of the knees, degenerative joint disease of the shoulders, and depression and anxiety." (R. 12-13). None of plaintiff's impairments meet or equal a listing.
Plaintiff also complains of sciatic pain in his legs, toes, and hips. (R. 15). After plaintiff's back injury, he gained one hundred pounds, but he recently lost weight.
According to Dr. Brian Terry Smedley's medical report from June 15, 2012, plaintiff uses a cane, but he has "no atrophy, heel/toe walking was equal bilaterally, range of motion of the spine revealed no defect, and straight leg raise was negative." (R. 16). Additionally, all range of motion was within normal limits.
Anna L. Pina, APRN, found that plaintiff has chronic back pain, cholesterol problems, and a BMI of 40.9. (R. 18). She, however, concluded that these issues were managed with pain and cholesterol medication.
The record does not support plaintiff's claims of disabling pain or plaintiff's selflimitations since plaintiff's doctors did not impose any limitations.
(R. 14).
Plaintiff's past relevant work as a parts inspector exceeds his RFC. (R. 19). The testimony from the vocational expert establishes that plaintiff can perform the representative jobs of sorter (DOT # 753.587-010, unskilled, light exertion), hand packager (DOT # 753.687-038, unskilled, light exertion), and "assembly" (DOT # 706.687-010, unskilled, light exertion). (R. 20). Therefore, plaintiff is capable of performing other work that exists in significant numbers in the national economy, meaning that he is not disabled.
The ALJ's review of the medical evidence, with respect to the issues raised by plaintiff, was accurate and thorough. Plaintiff's only challenge to the ALJ's opinion relates to plaintiff's use of a cane and his obesity. To the extent that plaintiff's medical records address these issues, they are discussed within the analysis section below.
On appeal, plaintiff raises two issues: (1) that the ALJ's RFC assessment is not supported by substantial evidence because the ALJ failed to take into consideration plaintiff's use of a cane; and (2) that the ALJ failed to properly consider plaintiff's obesity. (Dkt. 18 at 4).
Plaintiff argues that the ALJ's RFC assessment is not supported by substantial evidence because the evidence in the record related to his use of a cane overwhelms the ALJ's implied finding that plaintiff's cane is not necessary. (Dkt. 18 at 4-6). Plaintiff first contends that his use of a cane to ambulate calls into question the ALJ's finding that he can stand and walk six hours out of an 8-hour day. Plaintiff next argues that his use of a cane negatively impacts his ability to perform light work. Finally, plaintiff argues that the vocational expert's testimony did not consider the impact plaintiff's cane would have on his ability to perform the jobs identified by the expert. (Dkt. 18 at 5). These arguments are unpersuasive, however, because plaintiff never presented evidence establishing the cane as a medical necessity and the medical record alone does not support the conclusion that the cane is a medical necessity as required by SSR 96-9p. Therefore, the ALJ was not required to consider the use of a cane in his RFC analysis.
According to SSR 96-9p, the RFC need only consider the use of a hand-held assistive device if it is medically required. Social Security Ruling 96-9p, while not requiring a prescription, requires "medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed." SSR 96-9p. Plaintiff relies on his own testimony, his parents' reports, and the examining doctors' observations to satisfy this requirement. Based on the language of SSR 96-9p, plaintiff's testimony and his parents' reports cannot be used to establish proper medical documentation. Thus, the reports of the medical doctors and mental health physicians are the determining factor in whether or not the cane is a medical necessity.
Plaintiff's doctors' reports fail to establish his need for a cane since all of the remarks regarding plaintiff's cane are observational and none establish a requirement for a hand-held assistive device or describe a circumstance under which a hand-held assistive device is necessary.
In
In considering the correct analysis, the Tenth Circuit acknowledged that the record indicated ongoing health problems as well as opinions suggesting permanent nerve damage in the claimant's leg.
Here, the medical documentation in the record regarding the cane is as follows:
Additionally, plaintiff mentions in his function report that he uses a cane but that his cane is not prescribed by a doctor. (R. 258).
Plaintiff argues that the ALJ failed to properly consider his obesity because the ALJ did not mention or discuss obesity in her opinion. Plaintiff did not allege obesity as part of his disability application; however, plaintiff raised the issue at the ALJ hearing, and there is evidence of obesity present throughout the medical record. (R. 31). Plaintiff cites 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00Q, stating that an adjudicator must consider the effects of obesity throughout the sequential evaluation process.
The Commissioner argues two points to counter plaintiff's argument. First, the Commissioner argues that there is no acceptable medical diagnosis of obesity in the treatment record. (Dkt. 22 at 7). The Commissioner is correct that obesity is never mentioned as a formal diagnosis.
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Moreover, this finding is supported by
Here, the ALJ did not specifically discuss obesity in her analysis, but her failure to do so is harmless error, if error at all. First, the ALJ was aware of plaintiff's elevated BMI and mentioned it in her opinion. (R. 18). The ALJ also relied on medical records that noted plaintiff's BMI. (R. 337). Thus, it is clear that the ALJ considered plaintiff's obesity. Furthermore, even when the ALJ directly asked how plaintiff felt his weight was impacting his back and knees, plaintiff simply responded, "[m]ore weight more pressure." (R. 39). The only other mention of any impact on plaintiff caused by his obesity is plaintiff's statement that he believes the electric carts he uses for grocery shopping run out of battery quickly because he weighs so much. (R. 45). While almost every medical report mentioned plaintiff's BMI, there was no indication that his weight affected any of his other impairments or created any limitation the ALJ did not address. Thus, the record supports the ALJ's conclusion.
For the foregoing reasons, the ALJ's decision finding plaintiff not disabled should be AFFIRMED.
SO ORDERED.