Smith v. Commissioner of Social Security Administration

Filing 18

MEMORANDUM OPINION AND ORDER -- The Court has reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties. Based on the forgoing analysis, the Court REVERSES AND REMANDS the Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 3/8/19. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DARLA SUE SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-18-613-STE

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
applications for benefits under the Social Security Act. The Commissioner has answered
and filed a transcript of the administrative record (hereinafter TR. ____). The parties have
consented to jurisdiction over this matter by a United States magistrate judge pursuant
to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court REVERSES AND
REMANDS the Commissioner’s decision.
I.

PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

applications for benefits. Following an administrative hearing, an Administrative Law
Judge (ALJ) issued an unfavorable decision. (TR. 12-21). The Appeals Council denied

Plaintiff’s request for review. (TR. 1-3). Thus, the decision of the ALJ became the final
decision of the Commissioner.
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged
in substantial gainful activity since March 10, 2008, her alleged onset date. (TR. 14). At
step two, the ALJ determined that Ms. Smith had the following severe impairments:
obesity; diabetes mellitus; hypertension; a back disorder; hyperlipidemia; and
osteoarthritis of the hands. (TR. 14). At step three, the ALJ found that Plaintiff’s
impairments did not meet or medically equal any of the presumptively disabling
impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. (TR. 15).
At step four, the ALJ concluded that Ms. Smith retained the residual functional
capacity (RFC) to:
[L]ift and carry 20 pounds occasionally and 10 pounds frequently. The
claimant can sit for about 6 hours during an eight-hour workday and can
stand/walk for about 6 hours during an eight-hour workday. The claimant
can occasionally climb, balance, stoop, kneel, crouch, and crawl. The
claimant can frequently handle and finger as of February 26, 2016 (the
claimant had no limitations on handling and fingering prior to said date). 20
CFR 404.1567(b) and 416.967(b).
(TR. 16). At the administrative hearing, the ALJ questioned Ms. Smith and a vocational
expert (VE) to assess Plaintiff’s past relevant work. (TR. 39-43). In doing so, the VE
testified that an individual with Ms. Smith’s RFC was capable of performing her past work
as a cashier and a dispatcher. (TR. 43-44). Thus, at step four, the ALJ concluded that Ms.

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Smith was not disabled based on her ability to perform her past jobs as a cashier and a
dispatcher, as those jobs are actually and generally performed. (TR. 20).
III.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
IV.

ISSUES PRESENTED
On appeal, Ms. Smith alleges the ALJ: (1) committed legal error regarding Plaintiff’s

use of a cane; (2) erred at step four regarding Plaintiff’s past relevant work; and (3) failed
to properly apply the Medical-Vocational Guidelines (“the Grids.”).
V.

ERROR IN THE ALJ’S CONSIDERATION OF PLAINTIFF’S CANE USE
Ms. Smith alleges that the ALJ committed legal error in failing to account for

Plaintiff’s use of a cane in the RFC without explanation. The Court agrees.

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A.

Evidence Regarding Plaintiff’s Use of a Cane and the ALJ’s Findings

On May 19, 2015, Plaintiff’s treating physician, Melinda Powers, D.O., gave Ms.
Smith a cane and instructed her to use it to prevent falls. (TR. 266). And at the hearing,
Plaintiff walked with a cane and testified that approximately three times per week, she
would suffer from “flare-ups” involving leg numbness which would require her to use her
cane. (TR. 33-34).
In the administrative decision, citing evidence from Dr. Powers, the ALJ stated:
“Records noted the claimant was provided a cane to prevent falls.” (TR. 17). The ALJ also
noted Ms. Smith’s testimony regarding the use of her cane, stating that Plaintiff reported
using the cane 2-3 times per week during a “flare-up” involving leg numbness. (TR. 18).
The ALJ did not account for Plaintiff’s cane use in the RFC and did not explain his implicit
rejection of the same, but concluded that Ms. Smith could walk for 6 hours during an 8hour workday. See TR. 16.
B.

Error in the ALJ’s Consideration of Plaintiff’s Need for a Cane

Social Security Ruling 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.” SSR 96-9p, 1996 WL 374185, at *7
(July 2, 1996). And a prescription is not required for a hand-held assistive device to be
medically necessary, only “medical documentation establishing the need for the device.”

Staples v. Astrue, 329 F. App’x 189, 191 n. 1 (10th Cir. 2009).

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As discussed, the record establishes that Dr. Powers gave Plaintiff a cane to aid
her in preventing falls. See supra. Accordingly, the ALJ had a duty to discuss this evidence
and explain his treatment of the same. See Clifton v. Chater, 79 F.3d 1007, 1009-1010
(10th Cir. 1996) (holding that “an ALJ is not required to discuss every piece of evidence,”
but must “discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects”). The ALJ acknowledged the evidence from
Dr. Powers, but he failed to state whether he had accorded it any weight. (TR. 19). The
ALJ specifically rejected a “Medical Opinion Regarding Residual Functional Capacity”
Statement from Dr. Powers, but that statement made no findings regarding Plaintiff’s use
of a cane. Compare TR. 19 with TR. 261. The ALJ also acknowledged Plaintiff’s testimony
regarding her use of the cane, and ultimately found Plaintiff to be only partially credible,
but the ALJ did not specifically explain whether he had deemed Plaintiff credible regarding
her need to use a cane. See TR. 18-19.
The Commissioner offers two arguments in an attempt to defend the ALJ’s lack of
explanation, but neither of them are persuasive.
First, Ms. Berryhill argues that the RFC is supported by substantial evidence
because the ALJ cited: (1) a treatment record which noted that Ms. Smith had “normal”
strength and gait; (2) an x-ray which showed “no abnormalities in [Plaintiff’s] lumbar
spine; (3) Plaintiff’s testimony that she could perform household chores and babysit her
granddaughter; and (4) opinions from two State Agency physicians who had reviewed
Plaintiff’s need for a cane. (ECF No. 17:7, citing TR. 17, 19). Defendant’s argument misses
the mark for two reasons. First, the issue is not whether the RFC lacked substantial

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evidence, but instead, whether the ALJ committed legal error in failing to explain the
impact of Plaintiff’s cane use on the RFC. Second, the ALJ himself did not rely on this
evidence to reject Plaintiff’s medically-documented need to use a cane or her related
testimony1 and the Court is not permitted to supply post hoc rationales to uphold the
Commissioner’s decision. See Haga v. Astrue, 482 F.3d 1205, 1207 (10th Cir. 2007)
(“[T]his court may not create or adopt post-hoc rationalizations to support the ALJ’s
decision that are not apparent from the ALJ’s decision itself.”); Hackett v. Barnhart, 395
F.3d 1168, 1173 (10th Cir. 2005) (the Court should not “substitute [its] judgment for that
of the Commissioner.”).
In a second attempt to defend the ALJ, Ms. Berryhill states: “Ms. Smith has not
shown that her use of a cane would preclude performance of her past relevant work as
a dispatcher.” (ECF No. 17:8). In doing so, the Commissioner cites the portion of SSR 969p which states that:
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.
(ECF No. 17:8, citing SSR 96-9p, at *7). Accordingly, Ms. Berryhill states that Plaintiff’s
use of a cane would not preclude the minimal lifting and carrying requirements of her
past relevant work as a dispatcher based on how Plaintiff had described her duties as she
performed that job. (ECF No. 17:8-9). But the ALJ had concluded that Ms. Smith could

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See TR. 17, 19.

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perform the duties of the dispatcher job not as she had performed it, but how the job
was actually or generally performed as outlined in the DOT. (TR. 20). In addition, Ms.
Berryhill’s argument is premature because without findings from the ALJ regarding the
impact of Plaintiff’s cane use on the RFC, the Court cannot speculate regarding potential
findings regarding Ms. Smith’s ability to perform her past work as a dispatcher.
Ultimately, the Court concludes that the ALJ’s failure to explain his treatment of
Plaintiff’s need for a cane to prevent falling constitutes legal error and remand is
warranted. See Thompson v. Berryhill, No. CIV-17-923-R, 2018 WL 4402971, at *3 (W.D.
Okla. Mar. 13, 2018), report and recommendation adopted in part, No. CIV-17-923-R,
2018 WL 3427652 (W.D. Okla. July 16, 2018) (recommending reversal because the ALJ
had failed to discuss evidence regarding Plaintiff’s use of a cane or explain why he was
rejecting it or had failed to include it in the RFC); McAnally v. Berryhill, No. CIV-16-459M, 2017 WL 4080696, at *3 (W.D. Okla. Aug. 29, 2017), report and recommendation

adopted, No. CIV-16-459-M, 2017 WL 4079407 (W.D. Okla. Sept. 14, 2017)
(recommending reversal because the ALJ failed to address an opinion which stated that
the claimant required a cane for walking, an opinion which was “at odds” with the
claimant’s ability to perform “light” work).
VI.

PLAINTIFF’S OTHER ALLEGATIONS OF ERROR
Ms. Smith also alleges the ALJ: (1) erred at step four regarding Plaintiff’s past

relevant work and (2) had failed to properly apply the Grids. (ECF No. 16:8-11, 14-16).
The Court need not address the alleged errors at step four, because they could likely be
affected following a remand for reconsideration of evidence concerning Plaintiff’s use of

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a cane. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not
reach the remaining issues raised by appellant because they may be affected by the ALJ’s
treatment of this case on remand.”). And although the allegations concerning the ALJ’s
failure to apply the Grids would appear to be an independent error, Plaintiff’s argument
is premised on a finding that she is unable to perform her past relevant work. See ECF
No. 16:14-15. As stated, any findings regarding Plaintiff’s ability to perform her past
relevant work may be affected following the remand, precluding consideration of
Plaintiff’s argument regarding the Grids at this time.
ORDER
The Court has reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.
Based on the forgoing analysis, the Court REVERSES AND REMANDS the
Commissioner’s decision.
ENTERED on March 8, 2019.

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