Hairston v. Commissioner of Social Security

Filing 24

ORDER affirming the Commissioner's decision and directing the clerk to enter judgment in favor of the Commissioner and close the file. Signed by Magistrate Judge Patricia D. Barksdale on 9/13/2017. (BGK)

United States District Court
Middle District of Florida
Jacksonville Division
ANTHONY HAIRSTON,
Plaintiff,
V.

NO. 3:16-CV-733-J-PDB

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Order Affirming Commissioner’s Decision
This is an action under 42 U.S.C. § 405(g) to review a final decision of the
Commissioner of Social Security denying Anthony Hairston’s claim for disability
insurance benefits. He seeks reversal, Doc. 18; the Commissioner, affirmance, Doc.
23. He complains the Administrative Law Judge (“ALJ”) incorrectly found a cane was
neither prescribed nor medically necessary and as a result erroneously failed to
include a related residual-functional-capacity limitation in the hypothetical to the
vocational expert. Doc. 18 at 7−9.
Background
Hairston was born in 1969. Tr. 166, 171. He is a high-school graduate. Tr.
31−32. He has worked as a cook, sorter, banquet supervisor, and forklift operator. Tr.
171. He alleges he became disabled and stopped working in June 2011, listing as
impairments injuries to his neck, back, shoulder, and arm from a work-related
accident, arthritis and pain in his lumbar spine, herniated nucleus pulposus in his
cervical spine, carpal tunnel syndrome, and high blood pressure. Tr. 170. He is
insured through 2016. Tr. 166. He proceeded through the administrative process,
failing at each level. Tr. 1–4, 10–18, 89–91, 98–100. This case followed.

Evidence 1
Hairston settled a worker’s compensation claim resulting from the workrelated accident. Tr. 163, 164.
A handwritten clinic note by Brandon Kambach, M.D., in September 2011 lists
the word “cane” under a section titled “Plan of Care.” Tr. 532. Typed treatment notes
from that day do not mention a cane. Tr. 521–23. In January 2012, David Doward,
M.D., observed Hairston walked with “a slow, but stable gait.” Tr. 500.
On a “Florida Workers’ Compensation Uniform Treatment/Status Reporting
Form” completed in February 2012, Dr. Kambach marked a box next to “DME
[durable medical equipment] or Medical Supplies” and wrote, “CANE.” Tr. 857. The
box was in a section titled, “MANAGEMENT TREATMENT PLAN,” that included
the statements, “The following proposed, subsequent clinical service(s) is/are deemed
medically necessary,” and “THIS IS A PROVIDER’S WRITTEN REQUEST FOR
INSURER AUTHORIZATION OF TREATMENT OR SERVICES.” Tr. 857. On a
treatment note from that day, Dr. Kambach noted he gave Hairston “a prescription
for a cane per his request.” Tr. 482.
In March 2012, Hairston participated in a functional capacity evaluation. Tr.
450–56. The report states Hairston “performed with self[-]limited effort and with a
high pain focus,” he could perform “a minimum” of light work, he could stand
frequently or continuously, he could walk occasionally, and he “demonstrated
self[-]limited gait testing with cane ambulation preferred.” Tr. 450–51, 456.
On a worker’s compensation form signed by Dr. Kambach in July 2012, Dr.
Kambach did not check the box next to “DME or Medical Supplies” and left the space
next to it blank. Tr. 933.

1The

Court adopts the summaries of the evidence in the parties’ briefs. Doc. 18 at 2−5;
Doc. 23 at 6−12.

2

In March 2013, Mark Hoffman, M.D., observed Hairston reported using a cane
since 2011 and had come to the appointment with a cane but could walk with “a slight
antalgic gait without his cane.” Tr. 935, 937–38. That same month, based on a recent
functional capacity evaluation, Dr. Kambach opined Hairston could frequently sit and
occasionally stand and walk. Tr. 972.
In April 2013, Dr. Hoffman observed Hairston arrived with a cane but “was
able to walk normally without” it. Tr. 934. In July 2013, he observed Hairston again
had a cane but walked without it “slowly with an antalgic gait.” Tr. 933. In October
2013, he observed Hairston walked “with a mild antalgic gait without his cane that
he uses most of the time.” Tr. 932. In January 2014, he observed Hairston brought a
cane with him to the appointment but was able to walk without the cane “with a slow
but stable gait.” Tr. 1030.
At a May 2014 hearing before the ALJ, Hairston testified in pertinent part as
follows. He can sit for about 15 or 20 minutes, he can stand for about 3 to 5 minutes,
he can walk for about 5 to 10 minutes, and he has trouble climbing stairs. Tr. 42−43.
On an ordinary day, his wife helps him out of bed, he does at-home physical therapy
for about 20 minutes, and he exercises by walking on the street for about 20 minutes.
Tr. 50. He uses a chair in the shower, and his wife helps him get dressed. Tr. 51. He
makes simple meals, puts dishes in the dishwasher, and puts clothes in a washer and
dryer. Tr. 52. He and his wife have a ministry, and he goes to church twice a week.
Tr. 53. He has used a cane since 2011. Tr. 56. Sometime at the beginning of 2012, Dr.
Doward prescribed a cane. Tr. 44−47. He walks with a limp and uses the cane every
day. Tr. 56.
A vocational expert testified that Hairston had past relevant work as an
industrial truck operator. 2 The ALJ then posed several hypotheticals to the
2The

Dictionary of Occupational Titles describes an industrial truck operator:

Drives gasoline-, liquefied gas-, or electric-powered industrial truck equipped
with lifting devices, such as forklift, boom, scoop, lift beam and swivel-hook,
fork-grapple, clamps, elevating platform, or trailer hitch, to push, pull, lift,

3

vocational expert. Tr. 60−66. In the first hypothetical, the ALJ asked the vocational
expert to
assume an individual of the same age, education, and work experience
as the claimant. This individual would have the following limitations.
First, limited to work at the light exertional level defined as lifting up
to 20 pounds occasionally, lifting and carrying up to 10 pounds
frequently; standing and walking for about six hours; and sitting for up
to six hours in a normal work day with normal breaks. In addition,
limited to no climbing of ladders, ropes, or scaffolds; limited to—let’s see,
here. Limited to occasional climbing of ramps or stairs; occasional
balancing, occasional stooping, occasional kneeling, occasional
crouching, and limited to no crawling. Also, limited to frequent overhead
reaching with the left, upper extremity. Also, limited to frequent
fingering of objects defined as gross manipulation, and that would also
be with the left, upper extremity. In addition, this would be for … righthand dominant individual.
Tr. 61−62. The vocational expert opined the hypothetical individual could not work
as an industrial truck driver but could work as a short-order clerk, routing clerk, and
cashier II. Tr. 62.

stack, tier, or move products, equipment, or materials in warehouse, storage
yard, or factory: Moves levers and presses pedals to drive truck and control
movement of lifting apparatus. Positions forks, lifting platform, or other lifting
device under, over, or around loaded pallets, skids, boxes, products, or
materials or hooks tow trucks to trailer hitch, and transports load to
designated area. Unloads and stacks material by raising and lowering lifting
device. May inventory materials on work floor, and supply workers with
materials as needed. May weigh materials or products and record weight on
tags, labels, or production schedules. May load or unload materials onto or off
of pallets, skids, or lifting device. May lubricate truck, recharge batteries, fill
fuel tank, or replace liquefied-gas tank. May be designated according to article
moved as Lead Loader (smelt. & refin.); process in which involved as Stripper
Truck Operator (smelt. & refin.); or type of truck operated as Electric-TruckCrane Operator (any industry); Fork-Lift-Truck Operator (any industry); TierLift-Truck Operator (any industry). May be designated: Burnt-Lime Drawer
(concrete prod.); Casting Trucker (foundry); Electric-Freight-Car Operator (r.r.
trans.); Electric-Truck Operator (any industry); Gasoline-Truck Operator (any
industry); Metal-Storage Worker (nonfer. metal); Package-Lift Operator (any
industry).
Dictionary of Occupational Titles 921.683-050.

4

In the second hypothetical, the ALJ asked the vocational expert to
assume … this time at the sedentary exertional level, defined as lifting
up to 10 pounds occasionally, standing and walking for about two hours,
and sitting for up to six hours in an eight-hour work day with normal
breaks. In addition, limited to no climbing of ladders, ropes, or scaffolds.
Once again, limited to occasional climbing of ramps or stairs, occasional
balancing, occasional stooping, occasional kneeling, occasional
crouching, and no crawling. … [T]his time limited to occasional overhead
reaching bilaterally. Limited, once again, to frequent handling of objects
defined as gross manipulation with the left, upper extremity. And
limited to frequent fingering of objects defined as fine manipulation with
the left, upper extremity. Once again, this is for right-hand dominant
individual. And also, this time, with us it/stand [sic] option defined as
allowing a person to sit or stand alternatively at will, provided such a
person is [within] employer tolerances for off task behavior.
Tr. 64. The vocational expert opined the hypothetical individual could work as an
addresser, document preparer, and stuffer, and specified the number of such jobs
available in the national economy. Tr. 64.
Hairston’s counsel asked the vocational expert if the hypothetical individual
could work in those jobs if also limited with the left hand to occasional simple
grasping and fine manipulation. Tr. 66. The vocational expert opined the hypothetical
individual could not. Tr. 66.
ALJ’s Decision
At step one, 3 the ALJ found Hairston has not engaged in substantial gainful
activity since his alleged onset date (June 2011). Tr. 12.

3The

SSA uses a five-step sequential process to decide if a person is disabled, asking
whether (1) he is engaged in substantial gainful activity, (2) he has a severe impairment or
combination of impairments, (3) the impairment meets or equals the severity of anything in
the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, App’x 1, (4) he can perform any
of his past relevant work given his residual functional capacity, and (5) there are a significant
number of jobs in the national economy he can perform given his residual functional capacity,
age, education, and work experience. 20 C.F.R. § 404.1520(a)(4).

5

At step two, the ALJ found Hairston suffers from severe impairments of
degenerative disc disease, “left carpal tunnel release surgery,” hypertension, and
post-laminectomy syndrome. Tr. 12.
At step three, the ALJ found Hairston’s impairments, individually or in
combination, do not meet or medically equal the severity of any Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, App’x 1. Tr. 12.
The ALJ found Hairston has the residual functional capacity to perform
sedentary work 4 with additional limitations:
[H]e should have a sit/stand option allowing him to sit or stand
alternatively, at will, provided this person is within employer tolerances
for off task behavior. He should avoid climbing ladders, ropes, or
scaffolds and crawling. He can occasionally climb ramps/stairs, balance,
stoop, kneel, and crouch. He can occasionally reach overhead,
bilaterally. He can engage in frequent handling of objects (defined as
gross manipulation) with his left[,] upper extremity. He can engage in
frequent fingering of objects (defined as fine manipulation) with his
left[,] upper extremity.
Tr. 12–13. The ALJ observed he is right-hand dominant. Tr. 13.
The ALJ summarized the evidence. Tr. 13−17. She found Hairston’s testimony
about his symptoms and ability to function were “not entirely credible.” Tr. 14. She
included in the summary:
The claimant began treating with Dr. Mark Hoffman, who is board
certified in physical medicine and rehabilitation, in 2013. Dr. Hoffman
opined the claimant could work with restrictions of no lifting or carrying
greater than 10 pounds, avoidance of overhead reaching or repetitive
bending, pulling, pushing, or twisting, and alternation between sitting
and standing. He provided pain management with visits on April 18,
2013, July 23, 2013, and October 10, 2013. Treatment records note
4“Sedentary

work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job
is defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567.

6

benefit with medication but reports of pain levels of 8 on a 10 point scale.
There is mention of the use of a cane at times, but this was not
prescribed and Dr. Hoffman noted the claimant was able to walk
normally.
Tr. 16 (emphasis added). Elsewhere, she stated:
Though it was noted that he used a cane on occasion, there is no
evidence that this was prescribed, and it is not found to be
medically necessary. The claimant’s level of functioning, including
the ability to shop, drive, clean, and prepare simple meals all suggest an
ability to perform at least a reduced range of sedentary work.
Tr. 17 (emphasis added).
At step four, the ALJ found Hairston has past relevant work as an industrial
truck driver (Dictionary of Occupational Titles 921.683-050) performed at heavy
strength and cannot perform that work. Tr. 17.
At step five, the ALJ found Hairston’s past relevant work as an industrial truck
driver was semi-skilled and required skills of “material working” and “industrial
truck operator” but “there were no jobs provided at the sedentary exertional level for
which there were transferable skills.” Tr. 17. The ALJ then found, “Considering the
claimant’s age, education, work experience, and residual functional capacity, the
claimant has acquired work skills from past relevant work that are transferable to
other occupations with jobs existing in significant numbers in the national economy.”
Tr. 17. She continued, “The vocational expert was asked if any occupations exist
which could be performed by an individual with the same age, education, past
relevant work experience, and residual functional capacity as the claimant, and
which require skills acquired in the claimant’s past relevant work but no additional
skills” and testified the individual could work as an addresser, document preparer,
or stuffer.” Tr. 18. The ALJ concluded, “Accordingly, although the claimant’s
additional limitations do not allow the claimant to perform the full range of sedentary
work, considering the claimant’s age, education and transferable work skills, a
finding of “not disabled” is appropriate under the framework of Medical-Vocational
Rule 201.29.” Tr. 18.
7

Standard of Review
A court’s review of an ALJ’s decision is limited to determining whether the ALJ
applied the correct legal standards and whether substantial evidence supports his
findings. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Substantial
evidence is “less than a preponderance”; it is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Id. A court must affirm the
decision if substantial evidence supports it, “[e]ven if the evidence preponderates
against the … factual findings.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990). A court may not decide facts anew, reweigh evidence, make credibility
determinations, or substitute its judgment for the Commissioner’s judgment. Moore,
405 F.3d at 1211.
Law
Disability is 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 twelve months.” 42 U.S.C. § 423(d)(1)(A).
A claimant has the burden of proving disability. 20 C.F.R. § 404.1512(a)(1).
Thus, on an ongoing basis, he must inform the Social Security Administration (“SSA”)
of or submit all known evidence that relates to disability. Id. The evidence must be
complete and sufficiently detailed to allow the SSA to determine if he is disabled. 20
C.F.R. § 404.1512(a)(2). If he does not provide the evidence the SSA needs and
requests, the SSA will make a decision based on the available evidence. 20 C.F.R.
§ 404.1516.
Regardless of its source, the SSA “will evaluate every medical opinion” it
receives. 20 C.F.R. § 404.1527(c). “Medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and severity of …
impairment(s), including … symptoms, diagnosis and prognosis, what [one] can still
8

do despite impairment(s), and … physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a).
An ALJ is not required to “specifically refer to every piece of evidence in his
decision, so long as the ALJ’s decision … is not a broad rejection which is not enough
to enable [a court] to conclude that [the ALJ] considered [the claimant’s] medical
condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)
(internal quotation marks omitted). An erroneous factual statement by an ALJ may
be harmless if the ALJ applies the proper legal standard. Diorio v. Heckler, 721 F.2d
726, 728 (11th Cir. 1983); Majkut v. Comm’r of Soc. Sec., 394 F. App’x 660, 665 (11th
Cir. 2010).
A claimant’s residual functional capacity is the most he can still do despite his
limitations. 20 C.F.R. § 404.1545(a)(1). The SSA will assess residual functional
capacity based on all relevant evidence in the record and will consider all known
impairments. 20 C.F.R. § 404.1545(a)(1) & (2). The SSA uses the residual functional
capacity at step four to decide if a claimant can perform any past relevant work and,
if not, at step five with other factors to determine if there is any other job in significant
numbers in the national economy he can perform. 20 C.F.R. § 404.1545(a)(5).
The step-five determination may be accomplished by application of the grids
or use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239–40 (11th Cir.
2004). The grids provide a claimant with an opportunity to qualify for benefits if his
impairment does not meet the requirements of a listed impairment. Id. at 1240. They
consider his age, exertional limitations, educational deficiencies, inability to speak
English, and lack of job experience, and direct “a statutorily-required finding” of
disabled or not disabled. Id. Although the “general rule is that after determining the
claimant’s residual functional capacity and ability or inability to return to past
relevant work, the ALJ may use the grids” to determine if the claimant can perform
other jobs, id. at 1242, “exclusive reliance on the grids is not appropriate either when
[the] claimant is unable to perform a full range of work at a given residual functional
9

level or when [the] claimant has non-exertional impairments that significantly limit
basic work skills,” id. (quoted authority omitted; emphasis in Phillips). If either
circumstance exists, the ALJ must consult a vocational expert. Id.
If a claimant has both exertional and nonexertional limitations from his
impairments, the grids “are considered in determining first whether a finding of
disabled may be possible based on the strength limitations alone.” 20 C.F.R. Part 404,
Subpart P, App’x 2, § 200.00(e)(2). If not, they “provide a framework for consideration
of how much the individual’s work capability is further diminished” by the
limitations. Id.
“Skills and their transferability relate to ‘work experience’ … [and] people’s
abilities to do occupations different from those they did before becoming impaired.”
Social Security Ruling 82-41. Skill transferability is an issue if an impairment does
not meet or equal a listed impairment but prevents the performance of skilled or
semiskilled past relevant work. In a “relatively few” instances, skill transferability
will decide if a claimant is disabled. Id. If skill transferability is an issue and the ALJ
finds that the claimant has a transferable skill, the ALJ must identify in the written
decision the skill and the job to which the skill is transferable. Id. at *7.
“Transferability”—as distinct from using a skill recently learned in school— means
“applying work skills which a person has demonstrated in vocationally relevant past
jobs to meet the requirements of other skilled or semiskilled jobs.” Id.
Under the grids, a younger individual (18 to 44) who is limited to sedentary
work, has at least a high-school education, and has a history of skilled or semiskilled
work will be found not disabled regardless of whether his skills are transferable. 20
C.F.R. Part 404, Subpart P, App’x 2 §§ 201.28, 201.29. 5

5Here,

it is unclear whether the ALJ found transferable skills or whether the ALJ
used the grids, the vocational expert’s testimony, or both, but it does not appear to matter to
the end result, and Hairston does not raise the absence of clarity as an issue.

10

For a vocational expert’s testimony to be substantial evidence, the hypothetical
posed must include all of the claimant’s impairments. Winschel v. Comm’r, 631 F.3d
1176, 1180 (11th Cir. 2011).
According to a Social Security Ruling (“SSR”) and a provision in the Program
Operations Manual System (“POMS”),
Under the regulations, “sedentary work” represents a significantly
restricted range of work. Individuals who are limited to no more than
sedentary work by their medical impairments have very serious
functional limitations. …
[T]he rules … take administrative notice that there are approximately
200 separate unskilled sedentary occupations, each representing
numerous jobs, in the national economy. Therefore, even though
“sedentary work” represents a significantly restricted range of work,
this range in itself is not so prohibitively restricted as to negate work
capability for substantial gainful activity in all individuals.
Moreover, since each occupation administratively noticed … represents
numerous jobs, the ability to do even a limited range of sedentary work
does not in itself establish disability in all individuals, although a
finding of “disabled” usually applies when the full range of sedentary
work is significantly eroded …. In deciding whether an individual who
is limited to a partial range of sedentary work is able to make an
adjustment to work other than any PRW, the adjudicator is required to
make an individualized determination, considering age, education, and
work experience, including any skills the individual may have that are
transferable to other work, or education that provides for direct entry
into skilled work, under the rules and guidelines in the regulations.
…
The term “occupational base” means the approximate number of
occupations that an individual has the [residual functional capacity] to
perform considering all exertional and nonexertional limitations and
restrictions. … A full range of sedentary work includes all or
substantially all of the approximately 200 unskilled sedentary
occupations administratively noticed ….
Thus, the [residual functional capacity] addressed by a particular rule
… establishes an occupational base that at a minimum includes the full
range of unskilled sedentary occupations administratively noticed. …
11

[I]f the individual has no transferable skills or no education or training
that provides for direct entry into skilled work, the occupational base …
comprises only the sedentary unskilled occupations in the national
economy that such an individual can perform.
…
The following sections provide adjudicative guidance as to the impact of
various [residual functional capacity] limitations and restrictions on the
unskilled sedentary occupational base. The [residual functional
capacity] assessment must include a narrative that shows the presence
and degree of any specific limitations and restrictions, as well as an
explanation of how the evidence in file was considered in the
assessment. The individual’s maximum remaining capacities to perform
sustained work on a regular and continuing basis (what he or she can
still do 8 hours a day, for 5 days a week, or an equivalent work schedule)
must be stated.
An accurate accounting of an individual’s abilities, limitations, and
restrictions is necessary to determine the extent of erosion of the
occupational base, the types of sedentary occupations an individual
might still be able to do, and whether it will be necessary to make use of
a vocational resource. The [residual functional capacity] assessment
must be sufficiently complete to allow an adjudicator to make an
informed judgment regarding these issues.
…
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). The adjudicator must always consider the
particular facts of a case. For example, if a medically required hand-held
assistive device is needed only for prolonged ambulation, walking on
uneven terrain, or ascending or descending slopes, the unskilled
sedentary occupational base will not ordinarily be significantly eroded.
Since most unskilled sedentary work requires only occasional lifting and
carrying of light objects such as ledgers and files and a maximum lifting
capacity for only 10 pounds, an individual who uses a medically required
hand-held assistive device in one hand may still have the ability to
perform the minimal lifting and carrying requirements of many
sedentary unskilled occupations with the other hand. For example, an
individual who must use a hand-held assistive device to aid in walking
12

or standing because of an impairment that affects one lower extremity
(e.g., an unstable knee), or to reduce pain when walking, who is limited
to sedentary work because of the impairment affecting the lower
extremity, and who has no other functional limitations or restrictions
may still have the ability to make an adjustment to sedentary work that
exists in significant numbers. On the other hand, the occupational base
for an individual who must use such a device for balance because of
significant involvement of both lower extremities (e.g., because of a
neurological impairment) may be significantly eroded.
In these situations, too, it may be especially useful to consult a
vocational resource in order to make a judgment regarding the
individual’s ability to make an adjustment to other work.
SSR 96-9p 6 and Program Operations Manual System (“POMS”) DI 25015.020. 7
Analysis
In complaining the ALJ incorrectly found a cane was neither prescribed nor
medically necessary and as a result erroneously failed to include a related residualfunctional-capacity limitation in the hypothetical to the vocational expert, Hairston
points to the form Dr. Kambach signed in February 2012 indicating a cane was
medically necessary and requesting insurer authorization for it, Tr. 857, and
Hairston’s testimony his wife helps him get out of bed, he cannot stand in the shower,
he has pain down the right leg, and he uses the cane every day. Doc. 18 at 8−9.
The Commissioner responds substantial evidence supports the residualfunctional-capacity determination, pointing to the initial appointment following the

6SSRs

are agency rulings published under the Commissioner’s authority and are
binding on all components of the SSA. Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990). They
are not binding on a court. B.B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir. Unit B. 1981); see
Stein v. Reynolds Sec. Inc., 667 F.2d 33, 34 (11th Cir. 1982) (Eleventh Circuit is bound by
decisions issued by Unit B panels of the former Fifth Circuit).
7POMS

contains “publicly available operating instructions for processing Social
Security claims.” Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler,
537 U.S. 371, 385 (2003). POMS may be considered persuasive even though it does not have
the force of law. Stoup v. Barnhart, 327 F.3d 1258, 1262 (11th Cir. 2003).

13

accident in June 2011 and appointments during 2011, 2012, 2013, and 2014, at which
no cane was prescribed and he was released to return first to part-time work and then
to full-time work with no restriction concerning the use of a cane. Doc. 23 at 6−10.
The Commissioner observes the form Dr. Kambach signed in February 2012 is not a
treatment or progress note, Dr. Kambach does not state he is prescribing a cane for
Hairston, and Dr. Kambach does not reference treatment notes prescribing a cane,
and the Commissioner supposes “it may have simple [sic] reflected Plaintiff’s
subjective complaint to Dr. Kambach that he needed a cane.” Doc. 23 at 11. The
Commissioner adds the July 2012 form Dr. Kambach signed did not include the same
mark or notation, suggesting a cane was no longer medically necessary. Doc. 23 at
12.
The ALJ’s finding that no physician prescribed use of a cane was wrong.
Though the February 2012 worker’s compensation form does not necessarily suggest
Dr. Kambach prescribed a cane at that time, see Tr. 857, a treatment note from that
day states he gave Hairston “a prescription for a cane per his request,” see Tr. 482.
Nevertheless, the ALJ’s error was harmless because she applied the proper legal
standard, and substantial evidence supports her finding that a cane was not
medically necessary. The February 2012 treatment note showing Dr. Kambach’s
prescription of a cane indicates he gave the prescription based on Hairston’s request
and not based on an opinion he needed one, see Tr. 482, indicating the statement on
the worker’s compensation form that a cane was medically necessary was to obtain
insurer authorization for the cane. The ALJ described other evidence supporting the
finding Hairston did not need a cane. Treatment notes show Hairston walked
normally, with a slow but stable gait, or with an antalgic gait without a cane. See Tr.
500, 932–34, 938, 1030. A March 2012 functional capacity evaluation states Hairston
“performed with self[-]limited effort and with a high pain focus,” he could perform “a
minimum” of light work, he could stand frequently or continuously, he could walk
occasionally, and he “demonstrated self[-]limited gait testing with cane ambulation
preferred.” Tr. 450–51, 456. And in March 2013, Dr. Kambach opined Hairston could
14

frequently sit and occasionally stand and walk. Tr. 972. He did not mention any need
for a cane. 8
Other records mention Hairston’s use of a cane, but they do not undermine the
ALJ’s finding. A handwritten clinic note by Dr. Kambach from September 2011
simply lists the word “cane,” see Tr. 532; it is unclear whether that reflects Dr.
Kambach’s opinion Hairston needed one or just Hairston’s request for one. Typed
treatment notes from the same day do not mention a cane, though they mention all
other prescribed or recommended treatment listed in the clinic note, including
medication and physical therapy. See Tr. 521–23. Other treatment notes show doctors
had observed Hairston using a cane, see Tr. 932–35, 937, 1030, but those observations
are not evidence a cane was medically necessary, and the notes reflect that he could
walk without one. None of the medical records mentioning Hairston’s use of a cane
describe the circumstances in which Hairston would need to use one. Likewise,
though Hairston testified at the hearing that he walks with a limp and uses the cane
every day, he provided no testimony concerning the circumstances under which he
uses a cane and whether he needs it at all times. Tr. 56.
Because substantial evidence supports the ALJ’s finding a cane was not
medically necessary, she did not have to include a limitation concerning use of a cane
in the residual-functional-capacity finding.

8The

Commissioner observes Dr. Kambach did not indicate a cane was medically
necessary on a July 2012 worker’s compensation form. See Doc. 23 at 12 (citing Tr. 420).
Given that the purpose of that section of the form was to obtain insurer authorization for the
listed treatment, Dr. Kambach’s exclusion of the need for a cane from the form does not
necessarily mean he no longer believed a cane was medically necessary. Moreover, Dr.
Kambach checked a box on the form indicating there had been “[n]o change” in the
management and treatment plan since he submitted the February 2012 form. See Tr. 420.

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Conclusion
The Court affirms the Commissioner’s decision and directs the clerk to enter
judgment in favor of the Commissioner and close the file.
Ordered in Jacksonville, Florida, on September 13, 2017.

c:

Counsel of record

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