United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
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).
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.
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.
STANDARD OF REVIEW
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).
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.
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
Medical Necessity Analysis
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.
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.
Function by function assessment of relevant ...