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Aguirre v. Saul

United States District Court, W.D. Oklahoma

June 20, 2019

JORGE AGUIRRE, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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).

         The 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.

         I. PROCEDURAL BACKGROUND

         Initially 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.

         II. THE ADMINISTRATIVE DECISION

         The ALJ 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).

         At step 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 public contact.

(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. 63).

         III. STANDARD OF REVIEW

         This 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).

         While 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).

         IV. ISSUE PRESENTED

         On 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.

         V. ERROR IN THE ALJ'S FAILURE TO PROPERLY EVALUATE PLAINTIFF'S NEED FOR AN ASSISTIVE DEVICE

         As alleged by Mr. Aguirre, the ALJ failed to properly evaluate Plaintiff's need for an assistive device when evaluating the RFC.

         A. Factual Background/Medical Evidence

         In June 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. (TR. 968).

         On 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).

         On 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, 1138).

         On 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).

         B. Relevant Social Security Ruling

         Social 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 ...


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