SUZANNE MITCHELL, Magistrate Judge.
Alan Froehlich (Plaintiff) brings this action for judicial review of the Defendant Commissioner of Social Security's (Commissioner) final decision 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 Vicki Miles-LaGrange 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. 15. Following a careful review of the parties' briefs, the administrative record (AR),
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)).
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.
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 30-52; 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 Plaintiff:
AR 30-52.
The Social Security Administration's Appeals Council denied Plaintiff's request for review on September 5, 2017, so the ALJ's unfavorable decision is the Commissioner's final decision in this case. AR 1-6; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
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).
Plaintiff contends that the ALJ (1) formulated an RFC that did not match the jobs given by the vocational expert (VE), (2) failed to include limitations related to Plaintiff's prescribed cane in the RFC, and (3) improperly weighed the opinion of Clint Kirk, DO. Doc. 17, at 3-13. The Court evaluates these arguments in reverse order.
As a preliminary matter, Plaintiff argues that as a consultative examiner, Dr. Kirk's opinion is subject to the same inquiry as an opinion from a treating-source physician and must be given "controlling weight" if it is "`well-supported by medically acceptable clinical or laboratory diagnostic techniques'" and is not "`inconsistent with the other substantial evidence in the case record.'" Id. at 9-10 (citing Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting SSR 96-2p, 1996 WL 374188, at *2 (July 2, 1996)).
For claims filed before March 27, 2017, SSR 96-2p governs the evaluation of treating-source opinions.
Plaintiff alleges that the ALJ made "no weight designation" with respect to Dr. Kirk's opinion and argues the ALJ "found the ability to perform sedentary work despite the limitations found in [Dr. Kirk's] exam which would prevent it."
First, the ALJ did assign specific weight to Dr. Kirk's opinion. AR 42. As Plaintiff notes on several occasions in his brief, the ALJ assigned "moderate" weight to Dr. Kirk's opinion. Doc. 17, at 6-7. Second, the ALJ assessed Plaintiff as being able to perform a reduced range of light work. AR 36-37.
Plaintiff posits the ALJ was unclear about the meaning of the term "moderate weight" and, citing case law, argues the ALJ did not provide "an accurate and logical bridge" between the evidence and the ALJ's findings. Doc. 17, at 7, (citing Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) (internal citations omitted)). A treating-source opinion not afforded controlling weight is still entitled to deference. See Watkins, 350 F.3d at 1300; SSR 96-2p, 1996 WL 374188, at *4. "In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." SSR 96-2p, 1996 WL 374188, at *4. That an opinion is not given controlling weight does not resolve the second, distinct assessment—i.e., what lesser weight should be afforded the opinion and why. See Watkins, 350 F.3d at 1300-01. In this second inquiry, the ALJ weighs the relevant medical opinion using a prescribed set of regulatory factors:
Id. at 1301 (internal quotation marks omitted); 20 C.F.R. § 416.927(c)(2)-(6). The ALJ's decision "`must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Id. at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *5).
While the ALJ is required to consider the six regulatory factors in 20 C.F.R. § 416.927, there is no requirement the ALJ "apply expressly each of the six relevant factors in deciding what weight to give a medical opinion." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (citing SSR 06-03p, 2006 WL 2329939, at *5 ("[N]ot every factor for weighing opinion evidence will apply in every case. . . .")); Branum v. Barnhart, 385 F.3d 1268, 1275-76 (10th Cir. 2004) (affirming the district court's decision upholding the ALJ's inability "to give much weight" to the treating-source opinion stating "[t]he ALJ's treating physician analysis is in accordance with the sequential analysis required under the governing regulations and case law, and it is also supported by substantial evidence in the record); White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002) ("[W]e may well have reached a different conclusion concerning the weight to be given [treating-source's] disability assessment. Nevertheless, we agree . . . that the record contains substantial support for the ALJ's decision.").
In evaluating Dr. Kirk's opinion, the ALJ discussed Plaintiff's treatment history at length, including his subjective allegations, his treatment with Dr. Kirk and other physicians, diagnostic-imaging results, and the results of several consultative examinations. AR 38-48. After evaluating all the available evidence, the ALJ found that Plaintiff's subjective allegations were not consistent with the medical record, and that the assessed RFC was sufficient to accommodate Plaintiff's limitations. Id. at 49-50.
With respect to Dr. Kirk's opinion, the ALJ similarly found that while Dr. Kirk's opinion as to the nature and severity of Plaintiff's impairments was well supported, his opinion as to Plaintiff's "abilities and limitations is inconsistent with other substantial evidence" in the record and that evidence from other physicians "does not identify limitations that could reasonably be expected to support the abilities and limitations" described by Dr. Kirk. Id. at 42. The ALJ's analysis clearly identifies the "moderate weight" he assigned to Dr. Kirk's opinion and the rationale behind that assessment. Id. In weighing Dr. Kirk's opinion, the ALJ does not discuss why each specific limitation assessed was being adopted or rejected. However, in explaining the rationale behind the RFC, the ALJ discussed the rationale for each of the physical limitations contained in the RFC and explained why the postural and manipulative limitations Plaintiff testified to were not contained in the RFC. Id. at 49-50; see Davis v. Erdmann, 607 F.2d 917, 919 n.1 (10th Cir. 1979) ("[W]e will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.") (citations omitted).
Next, Plaintiff raises a linguistic argument regarding the ALJ's evaluation of Dr. Kirk's opinion. Plaintiff urges the Court to "look more intently" at the words used in the ALJ's decision, specifically that the term "`abilities and limitations'" used by the ALJ in connection with Dr. Kirk's opinion is the same as the phrase "`nature and severity of the impairments, and the impact of the impairments on the claimant's functional abilities.'" Doc. 17, at 7-8 (quoting AR 42) (emphasis omitted). Plaintiff argues that these semantic similarities cause the ALJ's decision to be "internally inconsistent" since the ALJ "cannot say he both accepts and rejects [Dr. Kirk's] limitations — it is not possible to do both and be right. They cancel each other out." Id.
The Commissioner correctly notes that this portion of Plaintiff's argument is "somewhat confusing." Doc. 21, at 9. Plaintiff's brief is unclear as to what legal or factual impact, if any, these alleged semantic similarities would have on this case. This Court is unable to address these contentions because Plaintiff failed to develop the factual and legal bases for the argument. See Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003) (declining to speculate on claimant's behalf when argument on an issue is "insufficiently developed"). On judicial review, "it is not our role to shore up [Plaintiff's] argument for him." Chrismon v. Colvin, 531 F. App'x 893, 896 (10th Cir. 2013) (citations omitted).
The ALJ properly considered Dr. Kirk's opinion as a treating-source opinion, correctly evaluated the opinion before assigning it moderate weight, and was adequately thorough in explaining his rationale for the assessment. Substantial evidence supports the ALJ's decision.
Plaintiff argues the ALJ erred by not including a limitation related to Plaintiff's prescribed cane in the RFC, and that therefore the assessed RFC "at the outset is incorrect because it is for light work." Doc. 17, at 4-5. Plaintiff argues that light work, "by its nature requires frequent lifting and carrying, which Plaintiff can only do with one hand due to his prescribed cane." Id. (emphasis omitted).
First, Plaintiff's argument presumes that an RFC restriction involving an assistive device will automatically restrict Plaintiff to sedentary work. Id. While a requirement concerning use of a cane may be consistent with a restriction to sedentary work, Plaintiff cites no Social Security regulation or case law requiring a limitation to sedentary work when the RFC includes a restriction involving an assistive device.
SSR 96-9p provides that assistive devices such as canes and walkers will be found medically necessary when there is "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." See also Staples v. Astrue, 329 Fed. Appx. 189, 192 (10th Cir. 2009) ("[Plaintiff] . . . needs to present medical documentation establishing the need for the device.").
The record contains conflicting evidence concerning the medical necessity of Plaintiff's assistive device. The record indicates Plaintiff was prescribed a cane following knee surgery in May 2014, and at the hearing Plaintiff testified that he uses his cane to maintain balance. AR 85, 287, 406, 463-69. The record is unclear as to whether Plaintiff ever used an assistive device before his May 2014 surgery. However, in May 2012, Plaintiff stated that he did not use any assistive devices to ambulate. Id. at 339.
In analyzing the medical record, the ALJ discussed at length a February 2014 consultative examination performed by Brian Birdwell, MD. Id. at 45. Dr. Birdwell noted Plaintiff's "markedly antalgic" gait, but also noted that Plaintiff "remarkably" did not use an assistive device. Id. at 389. Dr. Birdwell concluded that Plaintiff's case was "peculiar" and stated Plaintiff's symptoms of pain were "inordinate to any evident pathology." Id. at 390. The ALJ also evaluated the findings of consultative examiner S.A. Chaudry, MD, who evaluated Plaintiff in September 2015. Id. at 45. Dr. Chaudry found that following Plaintiff's knee surgery, he was able to walk unassisted, but that his gait was assisted with a cane. Id. at 632.
The Commissioner argues Plaintiff only received a prescription for a cane following his 2014 knee surgery, and that Plaintiff did not see Dr. Kirk again for nearly nine months following that surgery. Doc. 21, at 7-8. Citing the record and the text of the hearing decision, the Commissioner argues the ALJ "expressly considered and cited" evidence, including treatment records and diagnostic results, that supports the finding that Plaintiff does not require use of a cane. Id. at 8 (citing AR 40-42, 49, 328-31, 336-37, 345-47, 389, 393, 401, 448-450, 454-55, 487, 554-590, 632-33).
The record lends itself to two plausible conclusions concerning the medical necessity of Plaintiff's cane: (1) the Plaintiff's, that he requires ongoing use of a cane, or (2) the ALJ and the Commissioner's, that Plaintiff was prescribed a cane as a temporary measure following his surgery, and that the medical record does not otherwise support limitations consistent with the need for an assistive device. The possibility of drawing two different conclusions from the same facts "does not prevent an administrative agency's findings from being supported by substantial evidence" and the court may not "displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Lax, 489 F.3d at 1084.
Substantial evidence supports the ALJ's interpretation of the record and his reliance on this interpretation in opting not to include an assistive device in the RFC.
The ALJ found Plaintiff capable of occasionally being able to push/pull, including the operation of hand and foot controls. AR 36-37. Plaintiff argues "it can be inferred" that the term "operation of hand controls" is "equivalent to reaching and handling" since operating such controls will require the ability to reach and handle. Doc. 17, at 3. Plaintiff therefore reasons that jobs requiring more than occasional reaching and handling, such as those cited by the VE, would exceed Plaintiff's RFC. Id. at 3-4.
Plaintiff may be correct that jobs requiring the use of hand controls will also require the ability to reach and handle in order to operate those controls. But, Plaintiff's argument that the pushing/pulling required in such jobs is "equivalent" to reaching and handling is not supported by Social Security regulations or binding precedent. Notably, forms completed by state agency physicians and similar forms typically provided to examining physicians clearly indicate that manipulative activities such as reaching and handling are distinct from the ability to push, pull, and operate hand and foot controls. See, e.g., AR 103-104, 636.
Substantial evidence supports the ALJ's RFC assessment.
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 3, 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.
