Paxton v. Berryhill
Filing
15
MEMORANDUM OPINION AND ORDER directing (1) the Claimant's 13 Objections are overruled; (2) the 12 Proposed Findings and Recommendations of the Magistrate Judge are adopted in their entirety; (3) the Claimant's request for judgment on th e pleadings is denied; (4) the Commissioner's request for judgment on the pleadings is granted; (5) the decision of the Commissioner is affirmed; and (6) the Claimant's action is dismissed and removed from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 3/27/2019. (cc: counsel of record; United States Magistrate Judge) (kew)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RANDAL RAY PAXTON,
Plaintiff,
v.
Civil Action No. 2:18-cv-00493
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are the objections to the Magistrate Judge’s
Proposed Findings and Recommendation (“PF&R”), filed by the
plaintiff, Randal Ray Paxton (“Claimant”), on January 3, 2019.
I. Procedural History
On March 28, 2018, Claimant instituted this civil
action pursuant to 42 U.S.C. § 405(g).
Claimant seeks judicial
review of defendant Nancy A. Berryhill’s (“Commissioner”)
administrative decision, which denied his application for
disability insurance benefits and supplemental security income.
This action was referred to United States Magistrate
Judge Dwane L. Tinsley for consideration in accordance with 28
U.S.C. § 636(b)(1)(B) and the standing order in this district.
Claimant and the Commissioner have filed cross motions for
judgment on the pleadings.
II. Standard of Review
The court reviews de novo those portions of the
magistrate judge’s PF&R to which objections are timely filed.
28 U.S.C. §636(b)(1)(B); see Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982).
On the other hand, the standard for review of
the Commissioner’s decision is rather deferential to the
Commissioner under the Social Security Act, for “a reviewing
court must ‘uphold the determination when an ALJ has applied
correct legal standards and the ALJ’s factual findings are
supported by substantial evidence.’”
Brown v. Comm’r Soc. Sec.
Admin., 873 F.3d 251, 267 (4th Cir. 2017) (quoting Preston v.
Heckler, 769 F.2d 988, 990 (4th Cir. 1985)); see 42 U.S.C. §
405(g); Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974)
(stating that the court must scrutinize the record as a whole to
determine whether the conclusions reached are supported by
substantial evidence).
Substantial evidence is that which “a
reasonable mind might accept as adequate to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal citations omitted); accord Brown, 873, F.3d at 267.
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I. Discussion
Claimant objects to the magistrate judge’s proposed
finding that the ALJ’s RFC assessment was supported by
substantial evidence where the case law relied on by the
magistrate judge is, according to Claimant, distinguishable from
the facts in this case.
Obj. 1.
He further claims there was a
failure to provide any significant review of the medical
evidence before determining that Claimant had failed to meet his
burden of proof that his cane was medically required.
Obj. 2;
see Hughes v. Berryhill, 2017 WL 48154112, at *6 (S.D. W. Va.
2017) (holding that an assistive device, such as a cane, must be
medically “required” for it to affect a claimant’s RFC).
In
support thereof, he claims that “observations from the SSA Field
Office and the Agency’s psychological consultative examiner” was
not considered by the ALJ, but was probative of Claimant’s
medical need for a cane.
Id. at 3.
Finally, Claimant maintains
that, in the alternative, the ALJ should have ordered an
additional consultative examination to confirm whether or not
his cane is medically necessary.
Id.
Claimant asserts that this case differs from Johnson
v. Berryhill, 2017 WL 722063, at *9 (W.D. Va. 2017), insofar as
the Johnson court noted normal objective clinical findings as a
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basis for concluding that the ALJ was not obligated to include
RFC limitations for a cane.
Claimant insists that his
administrative record “included abnormal objective clinical
findings that supported his statements that his cane was
necessary.”
Obj. 2.
Claimant asserts that such evidence
indicated abnormalities, including tenderness to palpation,
decreased strength in his right foot, increased width of his
right ankle and heel, abnormal motor strength, limited range of
motion, and antalgic gait.
Id. at 2-3.
As the magistrate judge explained in his PF&R,
however, in order “[t]o 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.”
SSR 96-9P 1996 WL 374185, at *7.
“If the
claimant fails to supply appropriate documentation, the ALJ need
not include the use of an assistive walking device in the RFC
assessment.”
Helms v. Berryhill, 2017 WL 3038154, at *8 (E.D.
Va. 2017), adopted by 2017 WL 3032216 (E.D. Va. 2017).
“Courts
have held claimants to a high burden in supplying the
appropriate documentation.”
Id. (citing cases), see also
Hughes, 2017 WL 4854112, at *14.
“Self-reports and references
in the record from physicians that a claimant presented with an
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assistive device are not sufficient; there must be ‘an
unambiguous opinion from a physician stating the circumstances
in which an assistive device is medically necessary.’”
Johnson,
2017 WL 722063, at *9 (citing Tripp v. Astrue, 489 F. App’x 951,
955 (7th Cir. 2012)).
An unambiguous opinion from a physician stating the
circumstances in which an assistive device is medically
necessary is absent from the record.
As the Commissioner
correctly notes, the mere “fact that an SSA employee and a
psychologist (neither of whom have expertise relating to
orthopedic conditions) merely observed [Claimant] using a cane
does not transform the cane into a medical necessity.”
Opp. to Obj. 5 (emphasis supplied).
Resp. in
Because the Claimant failed
to meet his burden of providing the required documentation, the
magistrate judge understandably concluded that the ALJ was not
required to include Claimant’s cane in the RFC.
In the alternative, Claimant suggests that the ALJ
should have ordered an additional examination.
But as the
magistrate judge correctly notes in his PF&R, it was within the
ALJ’s discretion whether to order a consultative examination.
He was not required, by law, to do so.
See 20 C.F.R. §§
404.1519a, 416.919a (ALJ has discretion in determining whether
to order a consultative examination); Bishop v. Barnhart, 78 F.
5
App’x 265, 268 (4th Cir. 2003) (citing 20 C.F.R. § 404.1519a)
(“[T]he regulations state that the ALJ has discretion in
deciding whether to order a consultative examination.”).
Moreover, it is the Claimant’s burden to prove that he is
disabled.
The ALJ had “no further duty to develop the record,”
especially where Claimant was represented by counsel and never
requested a consultative examination.
See Resp. in Opp. to Obj.
9 (citing Def.’s Br. at 18-20).
Accordingly, the ALJ had sufficient evidence to
determine whether Claimant was disabled.
The magistrate judge
did not err in upholding the ALJ’s conclusion that Claimant
failed to meet his burden in furnishing proper documentation to
support his claim that his cane was medically required.
The
ALJ’s finding of no severe impairment is supported by
substantial evidence.
III. Conclusion
Accordingly, having received the PF&R and Claimant’s
objections, and having reviewed the record de novo, it is
ORDERED:
1. That the Claimant’s objections to the PF&R be, and
hereby are, overruled;
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2. That the proposed findings and recommendations of
the magistrate judge be, and hereby are, adopted in their
entirety;
3. That the Claimant’s request for judgment on the
pleadings be, and hereby is, denied;
4. That the Commissioner’s request for judgment on the
pleadings be, and hereby is, granted;
5. That the decision of the Commissioner be, and
hereby is, affirmed; and
6. That the Claimant’s action be, and hereby is,
dismissed and removed from the docket of the court.
The Clerk is directed to forward all copies of this
judgment order to all counsel of record and the United States
Magistrate Judge.
ENTER: March 27, 2019
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