United States District Court, Southern District of Indiana, Indianapolis Division
Denise K. LaRue United States Magistrate Judge
Alleging that he became totally disabled in December 2006, plaintiff Randy Leavitt applied for a period of disability, disability insurance benefits, and supplemental security income under the Social Security Act. The defendant Commissioner of Social Security denied his application and he now invokes judicial review of that decision.
Judicial review of the Commissioner’s factual findings is deferential: courts must affirm if her findings are supported by substantial evidence in the record and correct legal standards were applied. 42 U.S.C. § 405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If the evidence is sufficient for a reasonable person to conclude that it adequately supports the Commissioner’s decision, then it is substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758 (7th Cir. 2004). This limited scope of judicial review derives from the principle that Congress has designated the Commissioner, not the courts, to make disability determinations:
In reviewing the decision of the ALJ [administrative law judge], we cannot engage in our own analysis of whether [the claimant] is severely impaired as defined by the SSA regulations. Nor may we reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute our own judgment for that of the Commissioner. Our task is limited to determining whether the ALJ’s factual findings are supported by substantial evidence.
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While review of the Commissioner’s factual findings is deferential, review of her legal conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability as 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 has lasted or can be expected to last for a continuous period of not less than 12 months”. 42 U.S.C. §§ 416(i)(1) and 423(d)(1)(A). A person will be determined to be disabled only if her impairments “are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The combined effect of all of an applicant’s impairments shall be considered throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B).
The Social Security Administration (“SSA”) has implemented these statutory standards in part by prescribing a “five-step sequential evaluation process” for determining disability. 20 C.F.R. § 404.1520. If disability status can be determined at any step in the sequence, an application will not be reviewed further. Id. At the first step, if the applicant is currently engaged in substantial gainful activity, then she is not disabled. At the second step, if the applicant’s impairments are not severe, then she is not disabled. A severe impairment is one that “significantly limits [a claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Third, if the applicant’s impairments, either singly or in combination, meet or medically equal the criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, then the applicant is deemed disabled. The Listing of Impairments are medical conditions defined by criteria that the SSA has pre-determined are disabling. 20 C.F.R. § 404.1525. If the applicant’s impairments do not satisfy a Listing, then her residual functional capacity (“RFC”) will be determined for the purposes of the next two steps. RFC is an applicant’s ability to do work on a regular and continuing basis despite his impairment-related physical and mental limitations and is categorized as sedentary, light, medium, or heavy. 20 C.F.R. § 404.1545. At the fourth step, if the applicant has the RFC to perform her past relevant work, then she is not disabled. Fifth, considering the applicant’s age, work experience, and education (which are not considered at step four), and her RFC, she will not be determined to be disabled if she can perform any other work that exists in significant numbers in the national economy.
The burden rests on the applicant to prove satisfaction of steps one through four. The burden then shifts to the Commissioner at step five to establish that there are jobs that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to perform the full range of work at her assigned RFC level, then the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”), may be used at step five to arrive at a disability determination. The grids are tables that correlate an applicant’s age, work experience, education, and RFC with predetermined findings of disabled or not-disabled. 20 C.F.R. §§ 404.1569 and 1569a. If an applicant has non-exertional limitations or exertional limitations that limit the full range of employment opportunities at her assigned RFC level, then the grids may not be used to determine disability at that level; a vocational expert must testify regarding the numbers of jobs existing in the economy for a person with the applicant’s particular vocational and medical characteristics. Id.; Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may still be used as an advisory guideline in such cases. 20 C.F.R. § 404.1569.
An application for benefits, together with any evidence submitted by the applicant and obtained by the agency, undergoes initial review by a state-agency disability examiner and a physician or other medical specialist. If the application is denied, the applicant may request reconsideration review, which is conducted by different disability and medical experts. If denied again, the applicant may request a hearing before an administrative law judge (“ALJ”). An applicant who is dissatisfied with the decision of the ALJ may request the SSA’s Appeals Council to review the decision. If the Appeals Council either affirms or declines to review the decision, then the applicant may file an action in district court for judicial review. 42 U.S.C. § 405(g). If the Appeals Council declines to review a decision, then the decision of the ALJ becomes the final decision of the Commissioner for judicial review.
Mr. Leavitt’s application was denied on initial and reconsideration reviews. He requested and received a hearing before an ALJ in November 2010, during which he and a vocational expert testified. Mr. Leavitt was represented by counsel during the hearing. The ALJ issued her decision in April 2011.
At step one, the ALJ found that Mr. Leavitt has not engaged in substantial gainful activity since his alleged onset-of-disability date in December 2006. At step two, the ALJ found that Mr. Leavitt has the severe impairments of (1) back dysfunction, which has been assessed variously as lumbar strain with disc extrusion at L3-L4 and minimal annular bulging at L3-L4, with radiculopathy, degenerative disc disease, and herniated disc with no myelopathy; and (2) diabetes mellitus. Mr. Leavitt alleged a cognitive or mental impairment but the ALJ found no medically determinable physical or mental impairment that could be reasonably expected to cause the alleged symptoms had been demonstrated by objective medical signs and laboratory findings, as required by law. She also found that, while Mr. Leavitt had been treated for sinusitis, bronchitis, a crush injury to his right forearm and wrist, and hypertension, those were non-severe impairments because the medical evidence showed that their effects were not sustained or significant and, therefore, did not cause more than minimal functional limitations. At step three, the ALJ found that Mr. Leavitt’s impairments, severe and non-severe, singly and in combination, did not meet or medically equal any of the Listings of Impairments. She examined listings 1.04 (disorders of the spine) and 9.08 (diabetes mellitus).
For the purposes of steps four and five, the ALJ determined Mr. Leavitt’s RFC. She found that he had the capacity for “light” work with postural and mental limitations. Posturally, he is limited to occasionally kneeling and crawling. Mentally, the ALJ found that “[c]onsidering the claimant’s subjective complaints of pain and loss of memory/concentration, mentally the claimant has the capacity to understand, remember, and carry out simple, routine tasks.” (R. 21.) At step four, the ALJ found that this RFC prevented the performance of any of his past relevant work. At step five, based on the testimony of the vocational expert, the ALJ found that jobs exist in significant numbers in the national economy that Mr. Leavitt can perform and, therefore, he is not disabled.
In August 2012, the Commissioner’s Appeals Council denied Mr. Leavitt’s request that it review the ALJ’s decisions, thus rendering the ALJ’s decision the final decision of the Commissioner on Mr. Leavitt’s application for benefits and the one that the Court reviews.
Mr. Leavitt asserts three errors in the ALJ’s decision.
Need for a cane.
Mr. Leavitt argues that the ALJ’s decision is erroneous because his RFC finding fails to “acknowledge Mr. Leavitt’s need of a cane.” (Plaintiff’s Brief in Support of Complaint for Review [doc. 19] (“Plaintiff’s Brief”) at 11.) He points out that, during the hearing, the ALJ asked if the cane that he was using was prescribed by a doctor. Mr. Leavitt responded that it was prescribed when he first injured his back. Evidence of such a prescription could not be found in the record, as confirmed by Mr. Leavitt’s counsel at the hearing. (R. 56-57.) The vocational expert testified that, if Mr. Leavitt used a cane, then the light-level jobs that he testified existed for him would be eliminated. (R. 60.) The ALJ did not include any restrictions involving use of a cane in his RFC and found that Mr. Leavitt could perform exertional and postural functions that are inconsistent with use of a cane. Mr. Leavitt argues that the ALJ ignored his use of cane by improperly requiring a medical prescription before crediting his need for one.
The ALJ did not ignore Mr. Leavitt’s use of cane, having mentioned it four times in her decision. She noted that he testified that he uses a cane, (R. 22), and she noted that the records of three medical examinations or evaluations noted that Mr. Leavitt was using a cane, (R. 24, 25). While it is true that the ALJ’s decision does not mention her dialogue with Mr. Leavitt at the hearing about whether a doctor had prescribed his use of a cane, the absence of a prescription in the record, (R. 56-57), and the vocational expert’s testimony that the jobs that he had identified would not exist for a person using a cane, (R. 60), Mr. Leavitt fails to point to any evidence, other than his allegations, that he requires the use of a cane to ambulate or that a doctor prescribed the current use of cane. After noting at the hearing the lack of any prescription or suggestion from a medical professional in the record supporting his use of a cane, there was plenty of time after the hearing to augment the record with such evidence.
Social Security Ruling 96-9p, a policy interpretation of the implications of a RFC for less than the full range of sedentary work, provides:
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 ...