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Vann v. Berryhill

United States District Court, N.D. Oklahoma

February 26, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Before 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.

         I. Background

         Judge 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.

         II. Standard of Review

         Pursuant 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. 1991)).

         III. Specific Objections

         A. Dr. Kumar's Opinion

         The 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.

         The 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.

         The 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).

         B. Physical Limitations in the RFC

         Plaintiff's 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.

         Because 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 Hawkins, ...

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