REPORT AND RECOMMENDATION

SUZANNE MITCHELL, Magistrate Judge.

Gina Cook (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that she was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). Doc. 13.

Plaintiff maintains the ALJ overlooked some key limitations while formulating Plaintiff's residual functional capacity assessment.1 After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the court affirm the Commissioner's decision. See 42 U.S.C. § 405(g).2

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 [s]he can no longer engage in h[er] 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's findings.

The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 16-27; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:

AR 19-27.

2. Appeals Council's findings.

The SSA's Appeals Council denied Plaintiff's request for review, so the ALJ's unfavorable decision is the Commissioner's final decision here. Id. at 1-8; see 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). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084; Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) ("It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.") (internal quotation marks and citation omitted). A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citation omitted). 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) (citation omitted).

B. Issues for judicial review.

Plaintiff asserts the ALJ did not properly consider her use of a service dog, back and hip braces, or a wheelchair. Doc. 15, at 3-9.

III. Analysis.

A. Service dog.

Plaintiff argues that the ALJ should have considered her use of a service dog as a limitation in the RFC because she needed it to work. Id. at 5. Further, Plaintiff contends the ALJ did not adequately develop the record regarding the issue. Id. at 8-9.

The record evidence regarding Plaintiff's use of a service dog is limited. At the hearing, the ALJ inquired about a service dog Plaintiff brought to the hearing, and Plaintiff testified she has had the dog for seven years—the last four of which it was registered as service dog. AR 40. In her testimony, Plaintiff noted she got a service dog because it can "pick up on" her seizures. Id. Plaintiff does not direct the court to any other evidence regarding her use of a service dog, but the Commissioner notes one occasion that Plaintiff reported the use of a service dog at a medical appointment. Doc. 16, at 7 (citing AR 385).

Plaintiff also contends that "the ALJ did not mention whether the service dog factored into his opinions that Plaintiff's mental RFC and social functioning were only moderately limited." Doc. 15, at 4. But Plaintiff points to no evidence—subjective or objective—suggesting that she used her service dog to assist with her mental impairments.

Effectively, Plaintiff contends that the symptoms of her seizure disorder are such that she is limited to working with a service dog. When considering a claimant's alleged symptoms, an ALJ must consider both objective medical evidence and other evidence—including a claimant's own statements. See SSR 16-3p, 2017 WL 5180304, at *4 ("In considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record."). Plaintiff does not direct the court to any objective medical evidence regarding the service dog. The ALJ considered Plaintiff's complaints of seizures and noted that Plaintiff came to the hearing with a service dog. AR 22. Thus, the undersigned finds that the ALJ appropriately considered Plaintiff's use of a service dog as it relates to the seizure disorder. Because the ALJ appropriately considered the evidence, any imposition of a limitation at this stage would require reweighing the evidence, a task the undersigned cannot perform. See Newbold, 718 F.3d at 1262.

The undersigned also finds the ALJ did not have a duty to further develop the evidence with regard to Plaintiff's use of a service dog. Plaintiff was represented at the hearing by an attorney, AR 16, which factors against the need to further develop the record. See Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997). ("[W]hen the claimant is represented by counsel at the administrative hearing, the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored. Thus, in a counseled case, the ALJ may ordinarily require counsel to identify the issue or issues requiring further development."). Nor does Plaintiff cite any objective evidence in the medical record supporting a medical need for a service dog, which also factors against requiring further development. See id. at 1167 ("How much evidence must a claimant adduce in order to raise an issue requiring further investigation? ... [T]he starting place must be the presence of some objective evidence in the record suggesting the existence of a condition which could have a material impact on the disability decision requiring further investigation.... Isolated and unsupported comments by the claimant are insufficient, by themselves, to raise the suspicion of the existence of a nonexertional impairment.").

The cases Plaintiff cites in support of her argument are factually distinct from this matter. In Santos v. Colvin, the court found that the ALJ did not properly take into account the claimant's use of a service dog. 2013 WL 5176846, at *5 (W.D. Wash. Sept. 12, 2013). But in Santos, the court found the record indicated the "use of a service dog has been of significant benefit to [the claimant] in terms of his mental health symptoms." Id. (citing medical records supporting the benefit to the claimant). Further, the vocational expert in Santos testified that a service dog would likely not be allowed in the work settings of the types of jobs the claimant could perform. Id. at *6. And unlike Santos, here there is no "evidence in the record that [P]laintiff's use of a service dog is medically necessary."

In a second case that Plaintiff cites, Gonzalez v. Colvin, Plaintiff had a prescribed service dog.3 See 2016 WL 8670502, at *5-6 (D. Colo. Oct. 14, 2016) (citing records noting a physician's assistant prescribed Plaintiff a service animal and that the service animal assisted with anxiety symptoms). While the Gonzalez court found the evidence established a need for the ALJ to develop the record as to whether the claimant's service dog was a limitation on his ability to perform work, id. at *8, Plaintiff here points to no significant evidence regarding the use of a service dog. Plaintiff only cites her own testimony that her dog has been certified as a service dog and that the dog can sense her seizures. Doc. 15, at 3 (citing AR 39-40). So the undersigned finds further development of the record in this area unnecessary.

B. Hip and back braces.

Plaintiff testified that she used back and hip braces, which she alleged Dr. Titus prescribed in March 2017. AR 40; see also id. at 602-59 (notations that she wore her hip brace to physical therapy visits); id. at 697-702 (records related to the fitting of a custom hip brace). Plaintiff asserts that "while wearing the back brace and hip brace, she will have such limited [range of motion] that she will not be able to perform postural occasionally." Doc 15, at 4. She contends this limitation conflicts with the RFC, which allows for occasional balancing, stooping, kneeling, crouching, crawling, and climbing of ramps and stairs. Id.; AR 21.

Even assuming the ALJ erred by not assessing additional postural limitations due to Plaintiff's hip and back braces, the undersigned agrees with the Commissioner that any error is harmless. Doc. 16, at 9-10. None of the three occupations the vocational expert identified at step 5 requires balancing, stooping, kneeling, crouching, crawling, or climbing. See DICOT 739.687-182 (table worker); DICOT 249.587-018 (document preparer); DICOT 726.684-110 (touch-up screener);4 see also Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (A finding of harmless error is appropriate when the court can "confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way.").

C. Wheelchair.

In her opening brief, Plaintiff contends the ALJ erred when considering her use of a wheelchair. Doc. 15, at 4. In a relatively undeveloped argument, she argues that "she will be expected to roll in her wheelchair and carry things on the job," and the ALJ failed to raise this issue in the RFC. Id.

In support of her argument, she notes that she testified Dr. Titus prescribed her a wheelchair and she had been using one since April 2017. AR 39. Plaintiff also cites a therapy-session record that notes Plaintiff reported "at this point she cannot even walk and had to be in a wheelchair." Id. at 808; Doc. 15, at 4.

The ALJ noted that Plaintiff came to the hearing in a wheelchair. AR 22. He also noted that Plaintiff "used a cane and wheelchair to ambulate" and that Plaintiff testified that she was prescribed a wheelchair in April 2017. Id. But the ALJ also noted that Plaintiff "presented with unremarkable musculoskeletal symptoms, demonstrating full range of motion in her knees and full strength and coordination in her extremities." Id. at 23. He observed that Plaintiff presented an oddly antalgic gait on examination, but that "her healthcare providers have noted a lack of pathological basis for this and worried about [Plaintiff's] somatization of symptoms." Id.

The ALJ's analysis sufficiently analyzed Plaintiff's symptoms. He analyzed both the objective medical evidence and Plaintiff's statements regarding her alleged need of a wheelchair. See SSR 16-3p, 2017 WL 5180304, at *4. After considering those issues, the ALJ formulated an RFC that did not mandate the use of a wheelchair. To impose such a limitation now would require reweighing the evidence. See Newbold, 718 F.3d at 1262. The undersigned finds the ALJ did not err in his consideration of Plaintiff's wheelchair use when formulating the RFC assessment.

IV. Recommendation and notice of right to object.

For these reasons, the undersigned recommends the court affirm the Commissioner's decision.

The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by the 22nd day of October, 2019, 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 timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues 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.