United States District Court, M.D. Florida, Jacksonville Division
ORDER AFFIRMING COMMISSIONER'S DECISION
Patricia D. Barksdale, United States Magistrate Judge
an action under 42 U.S.C. § 405(g) to review a final
decision of the Commissioner of Social Security denying
Anthony Hairston's claim for disability insurance
benefits. He seeks reversal, Doc. 18; the Commissioner,
affirmance, Doc. 23. He complains the Administrative Law
Judge (“ALJ”) incorrectly found a cane was
neither prescribed nor medically necessary and as a result
erroneously failed to include a related
residual-functional-capacity limitation in the hypothetical
to the vocational expert. Doc. 18 at 7-9.
was born in 1969. Tr. 166, 171. He is a high-school graduate.
Tr. 31-32. He has worked as a cook, sorter, banquet
supervisor, and forklift operator. Tr. 171. He alleges he
became disabled and stopped working in June 2011, listing as
impairments injuries to his neck, back, shoulder, and arm
from a work-related accident, arthritis and pain in his
lumbar spine, herniated nucleus pulposus in his cervical
spine, carpal tunnel syndrome, and high blood pressure. Tr.
170. He is insured through 2016. Tr. 166. He proceeded
through the administrative process, failing at each level.
Tr. 1-4, 10-18, 89-91, 98-100. This case followed.
settled a worker's compensation claim resulting from the
work-related accident. Tr. 163, 164.
handwritten clinic note by Brandon Kambach, M.D., in
September 2011 lists the word “cane” under a
section titled “Plan of Care.” Tr. 532. Typed
treatment notes from that day do not mention a cane. Tr.
521-23. In January 2012, David Doward, M.D., observed
Hairston walked with “a slow, but stable gait.”
“Florida Workers' Compensation Uniform
Treatment/Status Reporting Form” completed in February
2012, Dr. Kambach marked a box next to “DME [durable
medical equipment] or Medical Supplies” and wrote,
“CANE.” Tr. 857. The box was in a section titled,
“MANAGEMENT TREATMENT PLAN, ” that included the
statements, “The following proposed, subsequent
clinical service(s) is/are deemed medically necessary,
” and “THIS IS A PROVIDER'S WRITTEN REQUEST
FOR INSURER AUTHORIZATION OF TREATMENT OR SERVICES.”
Tr. 857. On a treatment note from that day, Dr. Kambach noted
he gave Hairston “a prescription for a cane per his
request.” Tr. 482.
March 2012, Hairston participated in a functional capacity
evaluation. Tr. 450-56. The report states Hairston
“performed with self[-]limited effort and with a high
pain focus, ” he could perform “a minimum”
of light work, he could stand frequently or continuously, he
could walk occasionally, and he “demonstrated
self[-]limited gait testing with cane ambulation
preferred.” Tr. 450-51, 456.
worker's compensation form signed by Dr. Kambach in July
2012, Dr. Kambach did not check the box next to “DME or
Medical Supplies” and left the space next to it blank.
March 2013, Mark Hoffman, M.D., observed Hairston reported
using a cane since 2011 and had come to the appointment with
a cane but could walk with “a slight antalgic gait
without his cane.” Tr. 935, 937-38. That same month,
based on a recent functional capacity evaluation, Dr. Kambach
opined Hairston could frequently sit and occasionally stand
and walk. Tr. 972.
April 2013, Dr. Hoffman observed Hairston arrived with a cane
but “was able to walk normally without” it. Tr.
934. In July 2013, he observed Hairston again had a cane but
walked without it “slowly with an antalgic gait.”
Tr. 933. In October 2013, he observed Hairston walked
“with a mild antalgic gait without his cane that he
uses most of the time.” Tr. 932. In January 2014, he
observed Hairston brought a cane with him to the appointment
but was able to walk without the cane “with a slow but
stable gait.” Tr. 1030.
May 2014 hearing before the ALJ, Hairston testified in
pertinent part as follows. He can sit for about 15 or 20
minutes, he can stand for about 3 to 5 minutes, he can walk
for about 5 to 10 minutes, and he has trouble climbing
stairs. Tr. 42-43. On an ordinary day, his wife helps him out
of bed, he does at-home physical therapy for about 20
minutes, and he exercises by walking on the street for about
20 minutes. Tr. 50. He uses a chair in the shower, and his
wife helps him get dressed. Tr. 51. He makes simple meals,
puts dishes in the dishwasher, and puts clothes in a washer
and dryer. Tr. 52. He and his wife have a ministry, and he
goes to church twice a week. Tr. 53. He has used a cane since
2011. Tr. 56. Sometime at the beginning of 2012, Dr. Doward
prescribed a cane. Tr. 44-47. He walks with a limp and uses
the cane every day. Tr. 56.
vocational expert testified that Hairston had past relevant
work as an industrial truck operator. The ALJ then posed several
hypotheticals to the vocational expert. Tr. 60-66. In the
first hypothetical, the ALJ asked the vocational expert to
assume an individual of the same age, education, and work
experience as the claimant. This individual would have the
following limitations. First, limited to work at the light
exertional level defined as lifting up to 20 pounds
occasionally, lifting and carrying up to 10 pounds
frequently; standing and walking for about six hours; and
sitting for up to six hours in a normal work day with normal
breaks. In addition, limited to no climbing of ladders,
ropes, or scaffolds; limited to-let's see, here. Limited
to occasional climbing of ramps or stairs; occasional
balancing, occasional stooping, occasional kneeling,
occasional crouching, and limited to no crawling. Also,
limited to frequent overhead reaching with the left, upper
extremity. Also, limited to frequent fingering of objects
defined as gross manipulation, and that would also be with
the left, upper extremity. In addition, this would be for
… right-hand dominant individual.
Tr. 61-62. The vocational expert opined the hypothetical
individual could not work as an industrial truck driver but
could work as a short-order clerk, routing clerk, and cashier
II. Tr. 62.
second hypothetical, the ALJ asked the vocational expert to
assume … this time at the sedentary exertional level,
defined as lifting up to 10 pounds occasionally, standing and
walking for about two hours, and sitting for up to six hours
in an eight-hour work day with normal breaks. In addition,
limited to no climbing of ladders, ropes, or scaffolds. Once
again, limited to occasional climbing of ramps or stairs,
occasional balancing, occasional stooping, occasional
kneeling, occasional crouching, and no crawling. …
[T]his time limited to occasional overhead reaching
bilaterally. Limited, once again, to frequent handling of
objects defined as gross manipulation with the left, upper
extremity. And limited to frequent fingering of objects
defined as fine manipulation with the left, upper extremity.
Once again, this is for right-hand dominant individual. And
also, this time, with us it/stand [sic] option defined as
allowing a person to sit or stand alternatively at will,
provided such a person is [within] employer tolerances for
off task behavior.
Tr. 64. The vocational expert opined the hypothetical
individual could work as an addresser, document preparer, and
stuffer, and specified the number of such jobs available in
the national economy. Tr. 64.
counsel asked the vocational expert if the hypothetical
individual could work in those jobs if also limited with the
left hand to occasional simple grasping and fine
manipulation. Tr. 66. The vocational expert opined the
hypothetical individual could not. Tr. 66.
one,  the ALJ found Hairston has not engaged in
substantial gainful activity since his alleged onset date
(June 2011). Tr. 12.
two, the ALJ found Hairston suffers from severe impairments
of degenerative disc disease, “left carpal tunnel
release surgery, ” hypertension, and post-laminectomy
syndrome. Tr. 12.
three, the ALJ found Hairston's impairments, individually
or in combination, do not meet or medically equal the
severity of any Listing of Impairments, 20 C.F.R. Part 404,
Subpart P, App'x 1. Tr. 12.
found Hairston has the residual functional capacity to
perform sedentary ...