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Gilmer v. Berryhill

United States District Court, W.D. North Carolina, Charlotte Division

July 20, 2018

JAMES BARON GILMER., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Plaintiff's Motion for Summary Judgment (Doc. No. 11), and Defendant Commissioner of the Social Security Administration Nancy A. Berryhill's (“Commissioner”) Motion for Summary Judgment (Doc. No. 13). Plaintiff seeks judicial review of an unfavorable administrative decision on his application for supplemental security income under title XVI of the Social Security Act. (Tr. 37).

         Upon review and consideration of the written arguments, administrative record, and applicable authority, Plaintiff's Motion for Summary Judgment is DENIED for the reasons discussed below; the Commissioner's Motion for Summary Judgment is GRANTED; and the Commissioner's decision is AFFIRMED.

         I. BACKGROUND

         Plaintiff applied for Title XVI Supplemental Security Income on October 22, 2013, with an amended alleged onset date of July 31, 2014. (Tr. 17, 37, 60). His claim was initially denied on February 10, 2014, and again upon reconsideration on May 1, 2014. (Tr. 17). Plaintiff requested a hearing before an ALJ on May 7, 2014, (Tr. 101), and that hearing was held on May 17, 2016. (Tr. 17). The commissioner issued an unfavorable decision on August 5, 2016. (Tr. 14). The Appeals Council denied review on July 20, 2017. (Tr. 1). Plaintiff has exhausted all administrative remedies and now appeals pursuant to 42 U.S.C. § 405(g), seeking judicial review of that decision. The issue is whether the claimant is disabled under 1614(a)(3)(A) of the Social Security Act. (Tr. 17).

         II. STANDARD OF REVIEW

         Section 405(g) of Title 42 of the United States Code authorizes this Court to review the final decision of the Commissioner of Social Security to deny social security benefits. A reviewing court must uphold the ALJ's decision when (1) the ALJ has applied correct legal standards, and (2) substantial evidence supports the factual findings. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). Substantial evidence is more than a mere scintilla of evidence but less than a preponderance. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1982). It is evidence that a reasonable mind might accept as adequately supporting a conclusion. Id. When examining a disability determination, a reviewing court may not re-weigh conflicting evidence or make credibility determinations as “it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of Secretary if his decision is supported by substantial evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         The Commissioner must have applied the correct legal standard. Bird, 699 F.3d at 340. The Commissioner uses a five-step procedure for social security claims. Pursuant to this five-step process, the Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the severity of a listed impairment; (4) could return to his past relevant work; and (5) if not, could perform any other work in the national economy. Id., see also Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). The claimant bears the burden of proof at steps one through four, but the burden shifts to the Commissioner at step five. See Lewis, 858 F.3d at 861; Monroe v. Colvin, 826 F.3d 176, 179-80 (4th Cir. 2016). At the end of the third step, the Commissioner determines the claimant's RFC. Lewis v. Berryhill, 858 F.3d 858, 861-62 (4th Cir. 2017). A claimant's RFC is relevant if the claimant fails to meet a listed disability. Id. To succeed at the fourth step, the claimant must show his inability to perform past work. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015). If successful, the burden shifts to the government for the final step to prove that a significant number of jobs exist in the national economy which are suitable for the plaintiff. Lewis, 858 F.3d at 861-62. The government typically attempts to meet this burden through posing hypotheticals incorporating claimant's limitations to the Vocational Expert (VE), who then testifies whether claimant can work. Id. at 862. If the Commissioner meets this burden in step five, the ALJ will deem claimant not disabled and deny the benefits application. Id.

         III. ANALYSIS

         The issues here are (1) whether the ALJ erred by failing to perform a medical necessity analysis of Plaintiff's assistive device (“AD”), and (2) whether the ALJ failed to perform a function-by-function assessment of relevant contested functions in violation of Mascio. (Doc. No. 23, p. 3). The Court has reviewed the pleadings and briefs and now addressed Plaintiff's assignments of errors below.

         A. Medical Necessity Analysis

         Plaintiff contends the ALJ erred by failing to evaluate whether Plaintiff's cane use was medically necessary. (Doc. No. 12, p. 3). Plaintiff testified he used a cane because his “right leg goes out on him.” (Tr. 23). Plaintiff argues the ALJ did not include his cane use in the RFC finding and failed to discuss the required medical necessity analysis in her decision. (Doc. No. 12, p. 4). Plaintiff argues “when their use is alleged, ALJs are required to determine whether a handheld AD is medically necessary.” Id. Plaintiff further argues “the ALJ must review the medical evidence for documentation establishing the need for a hand-held AD to aid in walking or standing and the ALJ must determine whether the device is needed all the time, periodically or only in certain situations such as long distances or uneven terrain.” Id. Plaintiff cites testimony from the VE stating that Plaintiff's use of a cane would prevent him from engaging in medium work and that Plaintiff does not possess transferable skills from his past work. (Doc. No. 12, p. 5). However, SSR 96-9p does not require an ALJ to “make an express finding of medical necessity in all cases in which a claimant uses a cane.” Morgan v. Comm'r, Soc. Sec., No. 13-cv-2088-JKB, 2014 WL 1764922, at *1 (D. Md. Apr. 30, 2014). Rather, “SSR 96-9p provides guidance regarding the required showing for an ALJ to reach the conclusion that a claimant's hand-held device is ‘medically required' where an individual is capable of less than a full range of sedentary work.” Id. The claimant bears the burden of presenting “medical evidence establishing the need for a cane and describing the circumstances for which it is needed.” SSR 96-9p.

         Plaintiff cites Fletcher v. Colvin, in which the court stated, “a prescription or the lack of prescription for an assistive device is not necessarily dispositive of medical necessity.” No. 1:14CV380, 2015 WL 4506699, at *8 (M.D. N.C. Mar. 29, 2015) (citing Staples v. Astrue, 329 Fed.Appx. 189, 191-92 (10th Cir. 2009)). In Staples, the court stated the ALJ erred in relying on plaintiff's lack of prescription of a cane. 329 Fed.Appx. at 192. Nonetheless, the court held this was not an error requiring remand as “no indication [was] made of the medical necessity for the use of a cane.” Id. Similarly, here, Plaintiff did not present a prescription for his cane and the ALJ determined that Plaintiff failed to meet the burden of proving the medical necessity of using a cane. This Court has held “absent a doctor's prescription, a claimant's self-prescribed cane usage is merely a specific subjective complaint that must be substantiated by the objective medical evidence, and the ALJ is not obligated to perform a medical necessity analysis.” Christon v. Colvin, No. 3:15-CV-00305-RJC, 2016 WL 3436423, at *5 (W.D. N.C. June 15, 2016) (quoting Morgan, 2014 WL1764922, at *1)). The ALJ cited and gave “significant weight” to Dr. Earl J. Epps, who in his consultative examination stated, “the patient is able to get on and off the examination table and dress and undress himself without assistance and requires no assistive devices for ambulation.” (Tr. 273). The ALJ's RFC finding is supported by substantial record evidence, and Plaintiff failed to meet the burden for establishing the need for a cane. As such, the Court finds the ALJ made no error in this regard.

         B. Function by function assessment of relevant ...


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