United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN, UNITED STATES MAGISTRATE JUDGE
brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of
the Social Security Administration denying Plaintiff's
applications for benefits under the Social Security Act. The
Commissioner has answered and filed a transcript of the
administrative record (hereinafter TR. ___). The parties have
consented to jurisdiction over this matter by a United States
magistrate judge pursuant to 28 U.S.C. § 636(c).
parties have briefed their positions, and the matter is now
at issue. Based on the Court's review of the record and
the issues presented, the Court REVERSES AND
REMANDS the Commissioner's decision.
and on reconsideration, the Social Security Administration
denied Plaintiff's applications for benefits. Following a
hearing, an Administrative Law Judge (ALJ) issued an
unfavorable decision. (TR. 254-267). On review, the Appeals
Council remanded the case for a second hearing. (TR.
274-275). Following that hearing, the ALJ issued a second
unfavorable decision. (TR. 51-64). The Appeals Council denied
Plaintiff's request for review. (TR. 1-4). Thus, the
second unfavorable decision of the ALJ became the final
decision of the Commissioner.
THE ADMINISTRATIVE DECISION
followed the five-step sequential evaluation process required
by agency regulations. See Fischer-Ross v. Barnhart,
431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§
404.1520 & 416.920. At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity
since June 26, 2014, his alleged onset date. (TR. 54). At
step two, the ALJ determined that Mr. Aguirre had the
following severe impairments: right femur and right hip
fracture, status post two open reduction internal fixations
(ORIF) (femoral neck and for comminuted proximal diaphyseal
fracture of the right femur) and total hip replacement; HIV;
anxiety disorder; and depression. (TR. 54). At step three,
the ALJ found that Plaintiff's impairments did not meet
or medically equal any of the presumptively disabling
impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix
1 (TR. 55).
four, the ALJ concluded that Mr. Aguirre retained the
residual functional capacity (RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that he could stand/walk for thirty minutes
at a time, and up to two hours total in an eight-hour day. He
could sit for six hours out of an eight-hour day. The
individual could understand, remember, and carry out simple
and detailed instructions, with no more that occasional
(TR. 56). With this RFC, the ALJ concluded that Mr. Aguirre
was unable to perform his past relevant work. (TR. 62). Thus,
the ALJ proceeded to step five and presented the RFC
limitations to a vocational expert (VE) to determine whether
there were other jobs in the national economy that Plaintiff
could perform. (TR. 131). Given the limitations, the VE
identified three jobs from the Dictionary of Occupational
Titles. (TR. 131). The ALJ adopted the VE's testimony and
concluded that Mr. Aguirre was not disabled at step five
based on his ability to perform the identified jobs. (TR.
STANDARD OF REVIEW
Court reviews the Commissioner's final “decision to
determin[e] whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Wilson v.
Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Under the
“substantial evidence” standard, a court looks to
an existing administrative record and asks whether it
contains “sufficien[t] evidence” to support the
agency's factual determinations. Biestek v.
Berryhill, 139 S.Ct. 1148, 1154 (2019).
“Substantial evidence … is more than a mere
scintilla … and means only-such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 139 S.Ct.
at 1154 (internal citations and quotation marks omitted).
the court considers whether the ALJ followed the applicable
rules of law in weighing particular types of evidence in
disability cases, the court will “neither reweigh the
evidence nor substitute [its] judgment for that of the
agency.” Vigil v. Colvin, 805 F.3d 1199, 1201
(10th Cir. 2015) (internal quotation marks omitted).
appeal, Mr. Aguirre alleges the ALJ erred in failing to
accommodate Plaintiff's use of an assistive device in the
RFC or consider its impact on the occupational base. (ECF No.
13:4-8). The Court agrees that error occurred at step four,
but declines to consider whether the occupational base had
been erroneously affected.
ERROR IN THE ALJ'S FAILURE TO PROPERLY EVALUATE
PLAINTIFF'S NEED FOR AN ASSISTIVE DEVICE
alleged by Mr. Aguirre, the ALJ failed to properly evaluate
Plaintiff's need for an assistive device when evaluating
Factual Background/Medical Evidence
2014, Plaintiff fractured the shaft of his right femur which
was treated via surgical implantation of an intramedullary
rod. (TR. 937). In August 2014, Plaintiff fell from a porch
and fractured the neck of his right femur which was treated
with a closed fracture reduction with three cannulated
screws. (TR. 937). In September 2014, Plaintiff's
physician, Dr. David Teague, noted the importance of no
weight-bearing, and recommended that Plaintiff use a
wheelchair or crutches as needed. (TR. 1027). In January
2015, Plaintiff was walking and was struck by an automobile
which caused him increased pain and difficulty in ambulating.
January 28, 2015, the hardware from Plaintiff's prior
surgeries was removed, which revealed a healed right femur,
but no healing of the right femoral neck fracture. (TR.
936-937, 1039-1041). On February 17, 2015, Plaintiff saw Dr.
Rishi Thakral, an orthopedist, who noted that Plaintiff was
“unable to walk or weightbear.” (TR. 936-940,
947-951). Dr. Thakral discussed options with Mr. Aguirre, and
on March 18, 2015, Plaintiff underwent a right total hip
replacement. (TR. 813-816, 912-925).
March 31, 2015, Plaintiff was able to partially bear weight
on his right leg with the use of a walker or crutches. (TR.
907). On April 2, 2015, Dr. Thakral opined that Plaintiff
needed a walker frame or crutches to ambulate and that he
would not be able to bear any weight on the right leg for six
weeks. (TR. 973-974). On February 9, 2016, Dr. Thakral noted
that Plaintiff was “mobilizing well, ” but
complaining of intermittent pain and discomfort around the
trochanter region and anterolateral aspect of the thigh. (TR.
1094). On October 13, 2016, Plaintiff reported being able to
ambulate and denied any problems with his hip. (TR. 1121). On
November 3, 2016, Plaintiff reported pain in his right hip
which he felt radiated upwards into his back, but showed no
difficulty with range of motion in his hip or with walking.
(TR. 1124). On December 1, 2016, Dr. Thakral noted that
Plaintiff could walk without an assistive device. (TR. 1136,
April 11, 2017, Dr. Thakral's examination of Plaintiff
revealed “significant tenderness to palpation along his
greater troch as well as posteriorly and along his lumbar
spine as well.” (TR. 1233). To help alleviate
Plaintiff's pain, Dr. Thakral injected Mr. Aguirre's
right hip and wrote him a prescription for a walker. (TR.
1233-1235). On July 25, 2017, Mr. Aguirre saw Dr. Thakral for
a follow up visit, complaining of exacerbating pain in his
right hip. (TR. 1343-1344). On examination, Dr. Thakral noted
that Plaintiff demonstrated “voluntary muscle
rigidness” in getting up and that Plaintiff
“walked reasonably okay and used a cane, however, to
support on the left hand side.” (TR. 1343).
Relevant Social Security Ruling
Security Ruling 96-9p provides that assistive devices such as
canes and walkers will be found medically necessary when
there is “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 (July 2,
1996). In evaluating an individual's need for an
assistive device, the adjudicator ...