United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR., SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
Standard of Review
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.
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.
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 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.
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 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 Fed.Appx. 951, 955 (7th Cir. 2012)).
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.” Resp. in Opp. to Obj. 5 (emphasis
supplied). 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.
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 Fed.Appx. 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).
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 ...