                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 19, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                             FOR THE TENTH CIRCUIT


    SHARRI STAPLES,

                Plaintiff-Appellant,

    v.                                                    No. 08-6225
                                                  (D.C. No. 5:07-CV-01169-RO)
    MICHAEL J. ASTRUE, Commissioner                       (W.D. Okla.)
    of the Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         Plaintiff-appellant Sharri Staples appeals from an order of the district court

affirming the Commissioner’s decision denying her application for Social Security

disability and Supplemental Security Income benefits (SSI). Ms. Staples filed for

these benefits on January 27, 2006. She alleged disability based on back and leg

problems. The agency denied her applications initially and on reconsideration.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      On April 19, 2007, Ms. Staples received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that she retained the

residual functional capacity (RFC) to perform light work, with occasional

climbing, balancing, stooping, kneeling, crouching, and crawling. He found that

she could not return to her past relevant work, but that there were a significant

number of other jobs that she could perform in the national or regional economy,

thus making her not disabled. The Appeals Council denied review, making the

ALJ’s decision the Commissioner’s final decision.

      We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied. Andrade v. Sec’y of Health & Human Servs.,

985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations omitted).

      The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988) (describing process). The claimant bears the burden

of establishing a prima facie case of disability at steps one through four. See id.

at 751 n.2. If the claimant successfully meets this burden, the burden of proof

shifts to the Commissioner at step five to show that the claimant retains a




                                          -2-
sufficient RFC to perform work in the national economy, given her age, education

and work experience. See id. at 751.

      On appeal, Ms. Staples raises a single, narrow issue. She contends that the

ALJ erred by failing to consider and incorporate her use of a cane into his

determination of her RFC.

      At the ALJ hearing, Ms. Staples testified that she used a cane to walk. She

stated that she always used the cane, both around the house and when she left the

house. She said her doctor told her to use the cane after she stopped using a

walker because she was having trouble with her balance and with pain in her leg.

The ALJ then examined her further about her use of the cane, leading to the

following exchange:

      Q. I’m not sure I understood. Did you say your doctor prescribed
      your cane?

      A. He told me I can get a cane and use it.

      Q. No, I’m asking if he prescribed it.

      A. Prescribed it?

      WITNESS: Yes, he did.

      CLAIMANT: Did he? I can’t--

      ALJ: Excuse me.

      CLAIMANT: -- [INAUDIBLE]

      ALJ: Excuse me. You’ve been back there nodding your head and --


                                         -3-
      WITNESS: I’m so sorry.

      ALJ: --and, and you are not a witness and you’re not to testify
      unless you’re called as a witness, okay?

      WITNESS: I’m sorry.

      BY THE ADMINISTRATIVE LAW JUDGE:

      Q. Go ahead.

      A. Yes, I guess he did. I just forgot. I’ve had so much going on.

Aplt. App., Vol. II at 263-64.

      Ms. Staples’ prompted testimony on this point was in fact inconsistent with

a “Function Report --Adult” report she had earlier submitted to the agency dated

January 30, 2006. In that report, she indicated that she used a cane and

eyeglasses but that only the glasses were prescribed by a doctor. See id. at 80.

      After Ms. Staples finished testifying, the ALJ posed a hypothetical question

to a vocational expert (VE) concerning Ms. Staples’ ability to perform work in the

national and local economy. He asked the VE to assume that she had

      the physical capacity to perform light work that such a person could
      stand and/or walk about six of eight hours in a workday, could sit
      about six of eight, push/pull activities would be unlimited, that such
      a person could occasionally climb ramps, stairs, ladders, ropes,
      scaffolds, balance, stoop, kneel, crouch, and crawl and that no other
      physical or exertional limitations are established.

Id. at 268.

      The VE responded that she could perform the light, semi-skilled jobs of

hotel clerk or file clerk, or the sedentary, semi-skilled job of receptionist. On the

                                         -4-
other hand, if the limitations described in Ms. Staples’ testimony were accepted,

they would preclude all competitive work.

      In his decision, the ALJ assigned Ms. Staples the same RFC as that

described in his hypothetical question to the VE. He also accepted the VE’s

description of the jobs she could perform. As to her use of a cane, he made the

following observation: “The claimant testified she walks with a cane, but after a

thorough review of the medical evidence a prescription for the cane was not

found.” Id. at 18.

      Ms. Staples contends that this observation did not justify rejection of her

medical need for the cane. She cites Social Security Ruling 96-9p, which

provides in pertinent part as follows:

      Medically required hand-held assistive device: To find that a
      hand-held assistive device is medically required, there must be
      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 (i.e., whether all the time,
      periodically, or only in certain situations; distance and terrain; and
      any other relevant information). The adjudicator must always
      consider the particular facts of a case. For example, if a medically
      required hand-held assistive device is needed only for prolonged
      ambulation, walking on uneven terrain, or ascending or descending
      slopes, the unskilled sedentary occupational base will not ordinarily
      be significantly eroded.

1996 WL 374185, at *7. 1


1
     SSR 96-9p is entitled “Policy Interpretation Ruling Titles II and XVI:
Determining Capability To Do Other Work--Implications of a Residual Functional
                                                                     (continued...)

                                         -5-
      The standard described in SSR 96-9p does not require that the claimant

have a prescription for the assistive device in order for that device to be medically

relevant to the calculation of her RFC. Instead, she only needs to present medical

documentation establishing the need for the device. The ALJ therefore erred in

relying on Ms. Staples’ lack of a prescription for a cane.

      We must next ask whether this error requires a remand to the Commissioner

for application of the proper standard. When the ALJ has erred but “based on

material the ALJ did at least consider (just not properly), we could confidently

say that no reasonable administrative factfinder, following the correct analysis,

could have resolved the factual matter in any other way” a reviewing court may

“supply a missing dispositive finding under the rubric of harmless error.” Allen v.

Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). Application of that standard

here requires us to ask whether there is any medical documentation establishing

the need for a hand-held assistive device to aid in walking or standing.

      Having carefully reviewed the administrative record, we determine that the

answer here is “no.” The only reference we have located to a cane in the medical

evidence is Dr. Pelofsky’s statement on December 27, 2006 that Ms. Staples “still



1
 (...continued)
Capacity for Less Than a Full Range of Sedentary Work.” (emphasis added). The
ALJ found that Ms. Staples can do light work, not just sedentary work. The
parties agree, however, that the ruling’s standard for evaluation of a medically
required hand-held assistive device applies to Ms. Staples’ use of a cane.

                                         -6-
uses a cane to walk.” Aplt. App., Vol. II at 231. The record also indicates that

Dr. Wienecke’s office would obtain a temporary handicap placard for her. Id. at

197. But no indication is made of the medical necessity for the use of a cane.

      We do not gainsay the references in the medical record to Ms. Staples’

ongoing health problems. We acknowledge, for example, Dr. Wienecke’s opinion

that her left leg pain may be due to permanent nerve damage. Id. But SSR 96-9p

requires more than generalized evidence of a condition that might require use of a

cane. It requires “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.” 1996 WL 374185, at *7 (emphasis added). Such

evidence is entirely absent here.

      Ms. Staples contends, briefly, that the ALJ should have developed the

record further by contacting her treating physician to find out whether her use of

a cane was in fact medically required. Aplt. Opening Br. at 15. But this

argument has been waived. She did not make the argument in the district court

until her reply brief, and the district court therefore expressly declined to consider

it. See Aplt. App., Vol. I at 34, n.8. We do not generally consider arguments

waived in district court. See generally Crow v. Shalala, 40 F.3d 323, 324

(10th Cir. 1994). 2


2
      The circumstances do not compel us to reach the issue despite this district
                                                                    (continued...)

                                          -7-
      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




2
 (...continued)
court waiver. The issue was also bypassed before the ALJ. Ms. Staples was
represented by counsel at the hearing, and he specifically consented to closing of
the record and made no request that her physician be further contacted concerning
the need for a cane. See Cowan v. Astrue, 552 F.3d 1182, 1188 (10th Cir. 2008)
(stating that where claimant is represented by counsel, ALJ can ordinarily rely on
counsel to identify issues requiring further development). In addition, while
Ms. Staples initially stated at the hearing that her doctor told her to use the cane,
she later explained that her doctor said she could use a cane, not that she needed
to use one. Aplt. App., Vol. II at 260, 263. Though she stated with some
prompting at the hearing that a cane had been prescribed for her, this statement
was contradicted by her earlier function report that the cane had not been
prescribed. Any indication that the issue required further development was
therefore ambiguous at best.

                                         -8-
