REPORT AND RECOMMENDATION

CHARLES B. GOODWIN, Magistrate Judge.

Plaintiff Michael Floyd Wallace brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying Plaintiff's application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Chief United States District Judge Joe Heaton has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. The Commissioner has answered and filed the administrative record (Doc. No. 10, hereinafter "R.__").1 The parties have briefed their positions and the case is now ready for decision. For the reasons set forth below, it is recommended that the Commissioner's decision be reversed and remanded for further proceedings.

PROCEDURAL HISTORY

Plaintiff protectively filed his DIB application on April 28, 2013, alleging a disability onset date of August 6, 2001. R. 11, 131-33, 181. Following denial of his application initially and on reconsideration, a hearing was held before an Administrative Law Judge ("ALJ") on July 29, 2015. R. 28-61, 62, 68. In addition to Plaintiff, a vocational expert ("VE") testified at the hearing. See R. 11, 22, 47-60. The ALJ issued an unfavorable decision on September 24, 2015. R. 8, 13-23. The SSA Appeals Council denied Plaintiff's request for review, making the ALJ's unfavorable decision the final decision of the Commissioner. R. 1-4; see also 20 C.F.R. § 404.981. This action for judicial review followed.

ADMINISTRATIVE DECISION

As relevant here, a person is "disabled" within the meaning of the Social Security Act if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). In order to award benefits on a DIB application, the claimant must establish disability on or before his or her date last insured, rather than at some later date. 20 C.F.R. § 404.131; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010). The ALJ determined that Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2005. R. 11, 13. Therefore, the period under consideration is August 6, 2001, the alleged onset date, through December 31, 2005, his date last insured. R. 11.

The Commissioner uses a five-step sequential evaluation process to determine entitlement to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the period from August 6, 2001, through December 31, 2005. R. 13. At step two, the ALJ determined that Plaintiff had the severe impairments of dysfunction of major joints and osteoarthrosis and allied disorders. R. 13. At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 14.

The ALJ next assessed Plaintiff's residual functional capacity ("RFC") based on all of his medically determinable impairments. R. 14-21; see 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ found that, through the date last insured, Plaintiff had the RFC to perform light work, subject to the following limitations: "[Plaintiff] should not lift below 18 inches from the floor, perform kneeling, squatting, crawling or ladder climbing." R. 14. At step four, the ALJ found that, through the date last insured, Plaintiff was unable to perform any past relevant work and that transferability of job skills was not a material issue. R. 21.

At step five, the ALJ considered whether there were jobs existing in significant numbers in the national economy through the date last insured that Plaintiff—in view of his age, education, work experience, and RFC—could have performed. Taking into consideration the hearing testimony of a vocational expert regarding the extent to which Plaintiff's limitations erode the occupational base of light, unskilled work, the ALJ concluded that Plaintiff could perform light, unskilled occupations such as counter clerk and ticket seller, and could perform sedentary, unskilled work such as bench hand, all of which offer jobs that exist in significant numbers in the national economy. R. 22. On this basis, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, from August 6, 2001, through the date last insured. R. 22.

STANDARD OF REVIEW

Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted). The court "meticulously examine[s] the record as a whole," including any evidence that may undercut or detract from the ALJ's findings, to determine if the substantiality test has been met. Wall, 561 F.3d at 1052 (internal quotation marks omitted). While a reviewing court considers whether the Commissioner followed applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).

ANALYSIS

In this action, Plaintiff contends that the ALJ: (1) erred in determining Plaintiff's RFC, including by (a) failing to properly evaluate a physician's opinion that Plaintiff is limited to one hour of walking per workday, and (b) failing to adopt a limitation that Plaintiff requires the use of a cane; and (2) consequently erred in relying on testimony from the VE that did not incorporate all of Plaintiff's limitations. See Pl.'s Br. (Doc. No. 12) at 2-6.

A. Use of a Cane

Plaintiff argues that the ALJ erred by omitting from the RFC that Plaintiff requires the use of a cane. Pl.'s Br. at 6. Plaintiff objects that, "[t]he ALJ should have explained how Mr. Wallace is going to lift and carry while standing while one hand is occupied with a cane." Id. Plaintiff's argument is unavailing.

The ALJ explicitly considered the testimony and evidence regarding Plaintiff's use of a cane. See R. 15 (noting that Plaintiff stated in a Functional Report that he uses a cane and testified at the hearing that "he has used a cane since 2002" "in his right hand to assist walking and standing as prescribed"), 16 (noting that Plaintiff testified that "Dr. Martin, his hip doctor[,] prescribed him a cane in 2004 or 2005"). This evidence reflects Plaintiff's self-reports that he requires and was prescribed a cane but does not include any documentation of such a prescription. See id. Testimony of a prescribed cane is insufficient to establish that it was medically required when the record does not contain a prescription or other medical documentation of that requirement. Staples v. Astrue, 329 F. App'x 189, 191 (10th Cir. 2009); see also 20 C.F.R. § 404.1512 (2013).

Plaintiff does not point to any other record evidence that would supply the missing medical documentation and the undersigned has not found any in an independent review of the record. See R. 37 (Plaintiff's hearing testimony regarding use of a cane), 213 (functional report completed by Plaintiff addressing use of a cane), 488 (hospital admission questionnaire completed by Plaintiff addressing use of a cane).2 In the absence of qualifying evidence establishing Plaintiff's need for a cane during the relevant time period, Plaintiff has not shown that the exclusion of the cane from the RFC constituted legal error or was not supported by substantial evidence.

B. One-Hour Walking Limitation

As noted above, the time period under consideration is August 6, 2001, to December 31, 2005. In analyzing Plaintiff's RFC over the course of that period, the ALJ discussed the evaluations of two physicians who examined Plaintiff in September 2009: Michael Williams, MD, and M. Stephen Wilson, MD. R. 19; see also R. 579, 524-528. Both of these physicians opined that Plaintiff is restricted to one hour of walking per day. R. 579, 528. Plaintiff directs his claim of error to only one of these opinions—that of Dr. Williams—arguing that the ALJ erred by failing to adopt Dr. Williams' opinion of a onehour walking restriction or to explain the ALJ's reason for rejecting it. See Pl.'s Br. at 4.

In his decision, the ALJ summarized Dr. Williams' "residual functional capacity opinion dated September 8, 2009." R. 21; see also R. 19. The ALJ states that Dr. Williams' opinion was afforded "more weight" than another physician's opinion—one that was largely rejected by the ALJ—but does not specify the actual amount of weight assigned. R. 21. Of Dr. Williams' opinion, the ALJ stated that it:

R. 21; see R. 20, 265-72.3 The ALJ's RFC assessment includes no walking limitation. R. 14. The ALJ does not, in his discussion of Dr. Williams' opinion or elsewhere in the decision, provide any reason for rejecting that limitation. R. 14-21.

Although an ALJ need not discuss every piece of evidence, he or she is required to discuss the weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). "If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, 1996 WL 374184, at *7.4 See also Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (holding that an ALJ "must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects").

Here, the ALJ noted the one-hour walking restriction found by Dr. Williams but did not explain why he rejected that medical opinion. R. 19, 21; see also R. 16 ("[Plaintiff] testified he could lift 10 pounds and walk for one hour a day."). Although the ALJ might have faulted Dr. Williams' 2009 opinion as not being directed to Plaintiff's condition in 2001-2005, the ALJ did not do so but instead accepted that opinion as relevant to and supportive of his determination. R. 21. Having accepted Dr. Williams' opinion as relevant evidence of Plaintiff's condition, the ALJ erred by not addressing the portion of the opinion with which he disagreed.

The Commissioner urges that any error in this regard is harmless because the VE testified to an alternative hypothetical that included the one-hour walking limitation. See Def.'s Br. (Doc. No. 16) at 8-9; R. 52-55. Citing Lane v. Colvin, 643 F. App'x 766, 770 (10th Cir. 2016), the Commissioner argues that the fact that the VE testified that a hypothetical claimant with that additional limitation still would have 174,000 ticket seller jobs available to him or her means that any error by the ALJ in not adopting the additional limitation did not prejudice Plaintiff. See Def.'s Br. at 8-9.

One problem with this suggested approach is that in the RFC assessment the ALJ adopted two limitations not included in the alternative VE hypothetical. The ALJ's primary hypothetical to the VE—and the one ultimately relied on in that it matched the RFC—included limitations to light work, no "lift[ing] below 18 inches from the floor," and no "kneeling, squatting, crawling or ladder climbing." R. 49, 14. The VE responded that such a person could perform the light, unskilled occupations of counter clerk and ticket seller, as well as the sedentary, unskilled occupation of bench hand. R. 49-51. The alternative hypothetical, on the other hand, included limitations to light work and "stand[ing] and/or walk[ing] for one hour of an eight-hour workday" but did not include the 18-inch lifting limitation or the prohibition on kneeling, squatting, crawling, or ladder climbing. R. 52. The VE responded that such a person would be able to perform approximately 50% of the previously mentioned ticket-seller jobs, which amounted to 2000 jobs in the state and 174,000 jobs in the nation. R. 52-53.

The gap in the Commissioner's analysis is that the RFC reflects two limitations not contemplated in the alternative VE hypothetical: one on lifting and another on postural movement. Even if the undersigned were to consider VE testimony that was not actually relied on by the ALJ, it remains the case that unless such testimony addresses all the limitations included in the RFC it cannot stand as substantial evidence to support the ALJ's step-five determination. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (holding that the vocational expert hypothetical was sufficient because "it contained all of the limitations found to exist by the ALJ").

RECOMMENDATION

Having reviewed the record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned Magistrate Judge recommends that the decision of the Commissioner be REVERSED AND REMANDED for further proceedings consistent with this decision.

NOTICE OF RIGHT TO OBJECT

The parties are advised of their right to file written objections to this Report and Recommendation in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such objections must be filed with the Clerk of this Court by March 23, 2018. The parties are further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

STATUS OF REFERRAL

This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this case.