United States District Court, N.D. Oklahoma
REPORT AND RECOMMENDATION
H. MCCARTHY, UNITED STATES MAGISTRATE JUDGE.
Harry Joseph Vann, seeks judicial review of a decision of the
Commissioner of the Social Security Administration denying
Social Security disability benefits. The matter has been referred
to the undersigned United States Magistrate Judge for report
role of the court in reviewing the decision of the
Commissioner under 42 U.S.C. § 405(g) is limited to a
determination of whether the record as a whole contains
substantial evidence to support the decision and whether the
correct legal standards were applied. See Briggs ex rel.
Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir.
2001); Winfrey v. Chater, 92 F.3d 1017 (10th Cir.
1996); Castellano v. Secretary of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial
evidence is more than a scintilla, less than a preponderance,
and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28
L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). The court may neither
reweigh the evidence nor substitute its judgment for that of
the Commissioner. Casias v. Secretary of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir. 1991). Even
if the court would have reached a different conclusion, if
supported by substantial evidence, the Commissioner's
decision stands. Hamilton v. Secretary of Health &
Human Servs., 961 F.2d 1495 (10th Cir. 1992).
was 48 years old on the alleged date of onset of disability
and 50 on the date of the ALJ's denial decision. He has a
ninth grade education, but is unable to read and write.
Plaintiff formerly worked as a kitchen helper and a
cook's helper. He claims to have been unable to work
since March 23, 2012, as a result of a learning disability,
depression, anxiety, and lumbar sprain.
determined that Plaintiff retains the residual functional
capacity (RFC) to perform medium work as defined in 20 C.F.R.
§ 404.15');">1567(c) and 416.967(c), except he is limited to
the performance of simple tasks and cannot perform jobs that
require him to read or write in the performance of his job
duties. [R. 23]. Relying on the testimony of a vocational
expert, the ALJ found that one of the same age, education,
and work background as Plaintiff with the foregoing RFC,
could perform the jobs of kitchen helper or cook's
helper, as those jobs were actually performed by Plaintiff.
In addition, based on the testimony of a vocational expert,
the ALJ determined that there are a significant number of
jobs in the national economy that Plaintiff could perform
with his limitations. The case was thus decided at step four
of the five-step evaluative sequence for determining whether
a claimant is disabled with an alternative step five finding.
See Williams v. Bowen, 844 F.2d 748, 750-52 (10th
Cir. 1988) (discussing five steps in detail).
asserts that the ALJ failed to consider and weigh the
opinions of Dr. Kumar; the physical RFC is not supported by
substantial evidence; the mental RFC is not supported by
substantial evidence; the ALJ's step four finding is not
supported by substantial evidence and is legally flawed; and
the Commissioner failed to sustain her burden at step five.
asserts that the ALJ's decision should be reversed
because the ALJ did not mention the notation made by Laju
Kumar, M.D. about Plaintiff's use of a cane. According to
Plaintiff, “Dr. Kumar opined Plaintiff's use of a
cane was medically necessary.” [Dkt. 15');">15, p. 2]. The
undersigned finds that the failure of the ALJ to mention Dr.
Kumar's comment does not provide a basis for remand of
September 3, 2013, Plaintiff saw Dr. Kumar at Indian Health
Care Resource Center. The visit was a follow up of a
complaint of low back pain. In the notation of the subjective
comments, Dr. Kumar recorded that Plaintiff's back pain
was a lot better, that Plaintiff is using his cane
“when back hurts off and on, more in the am.” [R.
429]. After a fairly normal examination, [R. 430], Dr. Kumar
remarked, ”medically necessary to use a cane when in
back pain.” [R. 431]. At the hearing, Plaintiff was
represented by counsel. There was no mention of
Plaintiff's use of a cane at the hearing before the ALJ.
Where, as here, the claimant is ...