Opinion
Case No. CIV-19-0283-D
11-20-2019
KAY BISHOP, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her applications for disability insurance benefits and supplemental security income benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 423, 1382. The Commissioner has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be affirmed.
I. Administrative History and Final Agency Decision
Plaintiff filed her applications for disability insurance benefits and supplemental security income benefits on October 29, 2015. AR 287-93, 294-95. Plaintiff alleged she became disabled on July 2, 2015, due to a neck injury, high blood pressure, anxiety, and depression. AR 287, 294, 339. The Social Security Administration denied Plaintiff's applications on January 25, 2016, see id. at 81, 82, 83-96, 97-110, and on reconsideration on March 10, 2016. AR 111, 112, 113-28, 129-44.
Plaintiff appeared with counsel and testified at an initial administrative hearing before an Administrative Law Judge ("ALJ") on December 13, 2016. AR 55-80. The ALJ issued a decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act. AR 145-59. However, the Appeals Council granted Plaintiff's request for review and remanded the matter back to the ALJ. AR 165-66.
On remand, Plaintiff appeared with counsel and testified at a video administrative hearing on July 6, 2018. AR 37-54. A vocational expert ("VE") also testified at the hearing. AR 49-53. The ALJ issued a second decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act. AR 10-29. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since July 2, 2015. AR 15. At the second step, the ALJ found Plaintiff had severe impairments of degenerative disc disease status post cervical surgery, depression, and anxiety. AR 16. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. Id.
During the second administrative hearing, the ALJ appeared in Tulsa, Oklahoma and Plaintiff appeared in Muskogee, Oklahoma. AR 13, 39.
At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a limited range of light work. AR 18. Specifically, Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently. Id. Additionally, Plaintiff could stand and/or walk at least six hours in an eight-hour workday, sit at least six hours in an eight-hour workday, should avoid work above shoulder level, can perform simple, repetitive tasks, relate to supervisors and co-workers only superficially, and cannot work with the public. Id.
Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ determined Plaintiff could not perform her past relevant work. AR 27-28. Continuing to rely on the VE, the ALJ further concluded Plaintiff could perform the jobs of merchandise marker, router, and housekeeping cleaner. AR 28-29. Based on these findings, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from July 2, 2015 through the date of the decision. AR 29.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
II. Issues Raised
On appeal, Plaintiff contends the ALJ erred by not including her use of a cane in the RFC. Plaintiff's Opening Brief (Doc. No. 15) at 4-9.
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Biestek v. Berryhill, ___ U.S. ___, 139 S.Ct. 1148, 1153 (2019); Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Substantial evidence "means-and means only-'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek, 139 S.Ct. at 1154 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he [or she] is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. Analysis
Plaintiff argues the ALJ erred by not including her use of a cane in the RFC. Doc. No. 15 at 4-9. In support of this, Plaintiff relies on the record from two visits with her treating physician, Dr. Stephen Kelly. On August 9, 2017, Plaintiff reported to Dr. Kelly that her "legs 'give out on her at times', which leads to falls." AR 859. Dr. Kelly also noted during that visit that Plaintiff "displayed pain upon arising from a seated position and transitioning through the first few steps of ambulation." AR 858. Dr. Kelly recommended they obtain cervical and lumbar MRIs and "encouraged [her] to use a walker or cane at all times right now to help with balance and to prevent any falls until she can have her MRIs done and we can see what is going on with her neck and back." Id.
On September 11, 2017, during the next and final visit of record with Dr. Kelly, he noted, "Gait. She uses a cane.[] Her appearance in the exam room chair was the following: She displayed pain upon arising from a seated position and transitioning through the first few steps of ambulation." AR 861-62. Based upon these two entries in the record, Plaintiff argues the ALJ erred by determining that a cane was not medically necessary and by not including such a requirement in the RFC. Doc. No. 15 at 4-9. Based upon a review of the record as a whole, as well as the ALJ's reasoning set forth in his decision, however, the undersigned disagrees.
Plaintiff is correct that where the use of a cane, or similar assistive device, is medically necessary, the ALJ must account for that use in the RFC. Staples v. Astrue, 329 F. App'x 189, 191-92 (10th Cir. 2009) (citing Social Security Ruling 96-9p, 1996 WL 374185, at *7). However, as the opinion in Staples notes, medical necessity is shown only where the claimant presents "medical documentation establishing the need for a hand-held assistive device . . . and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information)." Id. at 191 (quoting Social Security Ruling 96-9p, 1996 WL 374185, at *7).
In his decision, the ALJ discussed Plaintiff's use of a cane as an assistive device and whether the same should be considered "medically necessary." Specifically, the ALJ stated:
Although the claimant reports the need for [a] cane and Dr. Kelly recommended the use of an assistive device (pending digital imaging), the undersigned finds no objective findings suggest use of an assistive device is medically necessary. Even more, since Dr. Kelly's recommendation, her gait and station appear normal and appropriate without mention of a cane. [AR 797, 804] . . . . [Dr. Easley reported Plaintiff] was able to heel to toe walk without noted difficulty. She ambulated unassisted with an unaltered gait and was able to climb onto the exam table without any difficulty. She rose from a seated position without difficulty. Dr. Easley appreciated no tenderness to palpation and no muscle spasms of the spine. Straight leg tests were negative in both supine and seated positions bilaterally.AR 25-26 (citations omitted).
Prior to the August 2017 visit with Dr. Kelly, during which Plaintiff reported her legs giving out on her and her falling, Plaintiff first visited Dr. Kelly on December 12, 2016. AR 675. Dr. Kelly noted she was there to address chronic pain management and chronic neck pain that began five years prior. Id. She described her pain as constant and rated it at a seven on a scale of one to 10 and reported no improvement with previous treatments, including physical therapy, epidural steroid injections, and pain pills averaging two per day. Id. Upon examination, Dr. Kelly noted that Plaintiff's neck was supple and she "displayed pain upon arising from a seated position and transitioning through the first few steps of ambulation." AR 677. He assessed chronic neck pain, chronic pain syndrome, high risk medication management, and opioid dependence. Id.
Plaintiff's visits to Dr. Kelly through the first half of 2017 reflect similar findings, including the notation that she displays pain upon arising and transitioning through the first few steps of ambulation at every visit. AR 813-14, 820, 829, 832, 839-40, 847, 854, 858-59. In May 2017, Plaintiff reported that her chronic neck pain was nearly controlled with medication. AR 838. In July 2017, Plaintiff reported that her pain symptoms were controlled at that point with medication. AR 853. As previously noted, in August 2017, Plaintiff reported falling when her legs feel as if they are going to give out on her. AR 859. Dr. Kelly recommended using a walker or cane "at all times right now" until she could obtain a cervical and lumbar MRI, for which Plaintiff's parents were going to help pay. Id. In her next and last visit of record to Dr. Kelly, Plaintiff reported that her pain symptoms were worse but controlled. AR 860. She also reported experiencing dizziness as a medication side effect. Id. Dr. Kelly noted that Plaintiff was using a cane and included the same notation regarding displaying pain upon arising from a seated position that he included in every visit of record. AR 861-62. Dr. Kelly advised Plaintiff that she had to decrease her current steroid dosage. AR 862. The record does not indicate the cervical and lumbar MRIs were ever performed.
As noted by the ALJ, Plaintiff was examined, or at the very least observed, by other physicians after her last visit with Dr. Kelly. AR 25-26. On October 9, 2017, Plaintiff was seen at Creoks Behavioral Health as a follow up examination after being hospitalized due to an overdose of painkillers. AR 804-05. In her Opening Brief, Plaintiff points out this was a mental, rather than physical, health examination. Doc. No. 15 at 6-7. Regardless, the record from the visit notes, "Examination of Gait/Station: Normal/Appropriate." AR 804. On November 13, 2017, Plaintiff visited Creoks Behavioral Health again and the same notation was recorded regarding normal and appropriate gait. AR 797. Neither record mentions the use of an assistive device. Id.
Based on the record as a whole, the ALJ concluded Plaintiff had not established that an assistive device was medically required. AR 25-26. On appeal, Plaintiff essentially argues that the record regarding the August and September 2017 visits with Dr. Kelly is sufficient to establish that an assistive device is medically required and that the ALJ's conclusion to the contrary was reversible error. She also contends that the October and November 2017 visits to Creoks Behavioral Health noting her normal and appropriate gait are not relevant because those were mental health examinations.
However, as noted, the ALJ specifically considered all of the evidence to which Plaintiff refers and concluded she had not met her burden in establishing an assistive device was not medically required. The ALJ noted the temporary nature of Dr. Kelly's recommendation "pending additional imaging" and the fact that subsequent records described Plaintiff's gait as normal and appropriate. AR 25-26. Plaintiff does not set forth any inaccuracies in the ALJ's references to the records, the ALJ's reasoning, or the legal standard applied.
In essence, Plaintiff's arguments regarding the ALJ's determination, as well as his weighing of medical evidence, turn on her contention that the evidence could support a different conclusion. That, however, is not the relevant standard of review on appeal. That a district court might have reached a different result is not a basis for reversal absent a showing that substantial evidence does not support the ALJ's decision. Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990); see also Putnam v. Comm'r, SSA, No. 18-1379, 2019 WL 5405951, at *6 (10th Cir. Oct. 22, 2019) (reaffirming that a reviewing court "cannot reverse simply because [it] might have reached a different result based on th[e] record."). In light of the seemingly temporary nature of Dr. Kelly's recommendation, as well as the record noting a normal and appropriate gait on two occasions after said recommendation, the undersigned concludes the ALJ's decision is reasonable and supported by substantial evidence. Accordingly, the ALJ's decision should be affirmed.
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter affirming the decision of the Commissioner. Plaintiff is advised of her right to file an objection to this Report and Recommendation with the Clerk of this Court on or before December 10th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 20th day of November, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE