United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
the Court is the Report & Recommendation
(“R&R”) (Doc. 19) of United States Magistrate
Judge Frank H. McCarthy on review of a decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying the Plaintiff, Harry
Joseph Vann, disability benefits. Judge McCarthy recommends
that the Court affirm the Commissioner's decision finding
Plaintiff not disabled. Mr. Vann filed a timely Objection
(Doc. 20) to the R&R, and he requests that the Court
“reverse and/or remand this matter for proper
consideration.” (Doc. 20 at 11). Reviewing the
Objection de novo, the Court has considered the
Administrative Record (“Record”) (Doc. 13), the
parties' briefs, the R&R, Plaintiff's Objection,
and the Commissioner's Response (Doc. 21), and concludes
that the Commissioner's determination should be affirmed
and the R&R should be accepted.
McCarthy accurately summarized the background of
plaintiff's disability claim and the decision of the
Administrative Law Judge (ALJ) (Doc. 19 at 1-3), and the
Court adopts that summary. Plaintiff objects to the R&R
on several grounds, which will be addressed below.
Standard of Review
to Fed.R.Civ.P. 72(b)(3), “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.” The
Court's task of reviewing the Commissioner's decision
involves determining “whether the factual findings are
supported by substantial evidence in the record and whether
the correct legal standards were applied.” Doyal v.
Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. “It is ‘more than
a scintilla, but less than a preponderance.'”
Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir.
2013) (quoting Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007)). The Court will “neither reweigh the
evidence nor substitute [its] judgment for that of the
agency.” Martinez v. Barnhart, 444 F.3d 1201,
1204 (10th Cir. 2006) (quoting Casias v. Sec'y of
Health & Human Servs., 933 F.2d 799, 800 (10th Cir.
Dr. Kumar's Opinion
Record contains “Progress Notes” from
Plaintiff's visit with Dr. Laju Kumar on September 3,
2013. (R. 429-431). It appears that Plaintiff told Dr. Kumar
during this visit that his back pain was a “lot
better” and that he was “using his cane when
[his] back hurts off and on, more in the am.” (R. 429).
At the end of the notes, Dr. Kumar wrote: “Medically
necessary to use a cane when in back pain.” (R. 431).
Plaintiff asserts that the ALJ erred in failing to consider
and weigh this comment as a medical opinion.
federal regulations broadly define medical opinions as
“statements from acceptable medical sources that
reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and
your physical or mental restrictions.” 20 C.F.R. §
404.1527(a)(1). “It is the ALJ's duty to give
consideration to all the medical opinions in the
record.” Keyes-Zachary v. Astrue, 695 F.3d
1156, 1161 (10th Cir. 2012) (citing C.F.R. §§
404.1527(c), 416.927(c)). The ALJ “must also discuss
the weight he assigns to such opinions.” Id.
Court finds that Dr. Kumar's comment regarding the need
for a cane is a medical opinion, as it reflects-to some
extent-the doctor's judgment regarding the nature and
severity of Plaintiff's back pain. However, “the
ALJ's failure to adequately discuss a physician's
opinion can be harmless.” Bledsoe ex rel. J.D.B. v.
Colvin, 544 F. App'x 823, 826 (10th Cir. 2013)
(unpublished) (citing Keyes-Zachary, 695 F.3d at
1161-65). Here, Dr. Kumar only states Plaintiff must use a
cane “when in back pain”; he does not provide
information on how often this might occur, other than
Plaintiff's self-reporting that he uses a cane “off
and on.” It is impossible to glean from this whether or
not Plaintiff's back pain and intermittent need for a
cane affects his ability to work. Dr. Kumar's opinion,
then, is not necessarily inconsistent with the ALJ's
residual functional capacity (“RFC”) assessment
that Plaintiff can perform medium work-especially considering
Plaintiff's testimony that he could mop floors for eight
hours a day with regularly scheduled breaks, as long as he
takes his pain medication (R. 56). The Court finds that the
ALJ's error in failing to discuss this medical opinion is
harmless. See Keyes-Zachary, 695 F.3d at 1165
(finding error harmless where ALJ failed to assign weight to
a medical opinion, but where limitations assigned by
physician were not inconsistent with those found by the ALJ).
Physical Limitations in the RFC
second objection concerns the ALJ's failure to obtain a
medical opinion regarding Plaintiff's physical
limitations. The undersigned agrees with Judge McCarthy in
finding no error here.
disability hearings are nonadversarial, “the ALJ has a
duty ‘to ensure that an adequate record is developed
during the disability hearing consistent with the issues
raised.'” Flaherty v. Astrue, 515 F.3d
1067, 1071 (10th Cir. 2007) (quoting Hawkins v.
Chater, 113 F.3d 1162, 1164 (10th Cir. 1997)).
“This duty to develop the record pertains even if the
claimant is represented by counsel, ” as the Plaintiff
was in this case. Id. (quoting Thompson v.
Sullivan, 987 F.2d 1482, 1492 (10th Cir. 1993)).
“Ordinarily, the claimant must in some fashion raise
the issue sought to be developed which, on its face, must be
substantial.” Id. (quoting Hawkins,
113 F.3d at 1167). “Specifically, the claimant has the
burden to make sure there is, in the record, evidence
sufficient to suggest a reasonable possibility that a severe
impairment exists.” Id. (quoting