Randall v. Social Security Administration Commissioner

Filing 30

ORDER that Plaintiff's Motion Pursuant to FRCP 59(e) to Amend or Alter Judgment (Doc. 26 ) is denied. See order for complete details. Signed by Judge Neil V. Wake on 1/7/15. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Doris Ann Randall,

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No. CV-13-02025-PHX-NVW
Plaintiff,

ORDER

v.

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Social Security Administration
Commissioner,

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Defendant.

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Before the Court is Plaintiff’s Motion Pursuant to FRCP 59(e) to Amend or Alter

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Judgment (Doc. 26). Defendant filed a response (Doc. 29). The time for Plaintiff to file

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a reply has expired, and no reply has been filed.

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Plaintiff contends that, under Social Security Administration policy, the

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administrative law judge (“ALJ”) was required to either include in the residual functional

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capacity assessment a hand use limitation because Plaintiff uses an assistive device or

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discuss why a hand use limitation was not included. Social Security Ruling 96-9p

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requires an ALJ to consider the use of a “medically required hand-held assistive device.”

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However:

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To find that a hand-held assistive device is medically required, there must
be 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 (i.e., whether all the time, periodically, or only in certain
situations; distance and terrain; and any other relevant information).

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It does not appear that Plaintiff asserted to the ALJ that her use of a cane or walker was

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medically required.

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documentation establishing the need. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

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1999); 20 C.F.R §§ 404.1545(a)(3), 416.945(a)(3) (claimant is generally responsible for

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providing the evidence regarding residual functional capacity). If a claimant has not

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presented evidence to support a limitation, the ALJ is not required to include it in the

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hypothetical proposed to a vocational expert. Osenbrock v. Apfel, 240 F.3d 1157, 1163

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(9th Cir. 2001).

But if she did, she bore the burden of providing medical

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Plaintiff testified that she was able to quit using a walker in May 2011 two months

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after her left knee surgery and that she began using a cane in August 2011 because her

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right knee had become worse. She said she went back to using a walker in January or

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February 2012 while she delayed her right knee surgery because of family issues. She

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said she had right knee surgery in April 2012. She appeared at the administrative hearing

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in May 2012 using a walker. All of her testimony regarding use of a cane or walker was

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in the context of her knee pain and knee surgeries. When her attorney asked if she used

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any kind of assistive devices, Plaintiff said she used a shower bench to get into and out of

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the bathtub. Plaintiff did not allege that her neuropathy required her to use an assistive

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device. She did not testify that she had required an assistive device for standing and/or

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walking continuously since her alleged date of disability onset (April 2010), nor did she

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say she expected to need an assistive device when she recovered from her recent knee

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surgery. At the administrative hearing, Plaintiff’s attorney questioned the vocational

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expert, but did not pose any hypothetical including use of a cane or walker.

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In her opening brief on appeal, Plaintiff said “a number of medical exhibits”

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confirmed her testimony that she uses an assistive device, but she cited only generally to

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T “16 (the consultative examination report)” and T “17 (treating source records),”

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without identifying specific pages. Treating source records mention Plaintiff using a

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cane, but do not state that one was prescribed or is medically required. On May 3, 2011,

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her physical therapist noted that Plaintiff did not need any ambulatory aids.
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The

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consultative examination report by Dr. Ottney states: “Claimant ambulates with the use

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of a cane, but she can ambulate without the use of a cane today.” Dr. Ottney also

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reported that Plaintiff said she uses a cane for balance, but it had never been prescribed.

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Upon examination, Dr. Ottney observed Plaintiff’s balance and coordination were normal

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and Plaintiff ambulated with a normal gait.

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The ALJ noted that Plaintiff “indicated that she used a walker and/or cane on and

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off since her knee surgeries.”

The ALJ also noted records showing Plaintiff’s

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improvement after both knee replacement surgeries, cortisone injections, and physical

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therapy and showing Plaintiff reported that she was feeling better and was not taking pain

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medication. These statements are supported by substantial evidence. Nothing in the

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record indicates a basis for the ALJ to question whether Plaintiff might need a hand-held

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assistive device to aid in walking or standing when she fully recovered from the recent

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right knee surgery.

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Because Plaintiff did not present medical documentation establishing the need for

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a hand-held assistive device to aid in walking or standing, there was no basis for the ALJ

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to find that a hand-held assistive device was medically required. If it was not medically

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required, the ALJ was not required to consider whether a hand-held assistive device

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limited Plaintiff’s functional capacity. The ALJ did not err by not discussing the absence

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of evidence to support finding that a hand-held assistive device was medically required or

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the reasons for not including a related limitation in the residual functional capacity

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assessment.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion Pursuant to FRCP 59(e) to
Amend or Alter Judgment (Doc. 26) is denied.
Dated this 7th day of January, 2015.

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Neil V. Wake
United States District Judge

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