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Love v. Colvin

United States District Court, D. Kansas

April 6, 2015

KIMBERLY A. LOVE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602 and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a and 1382c(a)(3)(A) (hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's decision.

I. Background

Plaintiff applied for SSI, alleging disability beginning July 31, 2001. (R. 14, 141-47). She exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. Plaintiff alleges the Administrative Law Judge (ALJ) erred in relying upon the Medical-Vocational Guidelines (grids) instead of using the services of a vocational expert (VE), failed properly to consider her obesity in his residual functional capacity (RFC) assessment, and erred in his credibility analysis.

The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

The Commissioner next evaluates steps four and five of the sequential process- determining at step four whether, in light of the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id .; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

The court finds no error as alleged by Plaintiff. It addresses each error alleged, but organizes its opinion in the order that the alleged errors would be reached in applying the sequential evaluation process.

II. Consideration of Obesity in the RFC Assessment

Plaintiff acknowledges that the ALJ found that her obesity is a medically determinable impairment, but argues that he failed to consider it in his RFC assessment, and thereby failed properly to consider this impairment in his analyses at step four and step five of the sequential evaluation process. Plaintiff argues that the ALJ's entire analysis of obesity appears in the decision at step two of the evaluation process, and is merely boilerplate language. She argues that contrary to the requirements of Social Security Ruling (SSR) 02-1p, the ALJ erroneously failed to provide a discussion of the effects of obesity on her severe impairments. She notes that the regulations recognize that the effect of obesity in combination with another impairment may be greater than the effect of each impairment individually, and argues that for this reason "the SSA [(Social Security Administration)] has instructed ALJs to consider obesity throughout the disability process and explain any related findings." (Pl. Br. 12) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(Q); and SSR 02-1p).

The Commissioner argues that the ALJ's RFC assessment adequately accounted for Plaintiff's obesity. She argues that the ALJ restricted Plaintiff to sedentary work because he gave her the benefit of the doubt regarding the physical limitations resulting from her obesity. She argues that even though the ALJ's written analysis of Plaintiff's obesity was contained within his step two analysis, there is no requirement that particular portions of the analysis be included in certain portions of the decision. The record evidence supports the RFC assessment, there is no record evidence of limitations resulting from Plaintiff's obesity, and Plaintiff points to no such evidence.

As Plaintiff asserts, the regulations and SSR 02-1p require that an ALJ must consider obesity and must consider all impairments in combination "throughout the disability determination process." 20 C.F.R. § 416.923; see also, generally, SSR 02-1p, West's Soc. Sec. Reporting Serv., Rulings 251-61 (Supp. 2014). Moreover, SSR 02-1p explains how obesity must be considered in a disability determination, and how it must be considered in combination with other impairments. Contrary to Plaintiff's assertions otherwise, while there is a requirement that obesity be considered and that it be considered in combination with other impairments, there is no requirement that it be discussed in a particular manner or at a particular time in a disability decision. SSR 02-1p requires that obesity be considered in determining whether an individual has a medically determinable impairment, whether the individual's impairments are severe, whether the individual's impairments meet or equal the requirements of a listed impairment, and whether the individual's impairments prevent her from doing past relevant work or any other work in the economy. West's Soc. Sec. Reporting Serv., Rulings 253-54 (Supp. 2014).

Here, there can be no doubt that the ALJ considered whether obesity is a medically determinable impairment and whether it is severe, because the ALJ specifically found that it was a medically determinable impairment but that it was not severe. (R. 16). Moreover, he stated that "[t]he effects of the claimant's obesity have been considered when determining a residual functional capacity for the claimant." Id.

As the Commissioner points out, a court will usually take a lower tribunal at its word when it says it has considered a matter. Hackett, 395 F.3d at 1172-73 (10th Cir. 2005). It will not depart from that practice absent sufficient justification in the record to do so. Id . Plaintiff provides no justification on this record.

With regard to the step three determination whether Plaintiff's condition meets or equals a listed impairment, the ALJ stated that Plaintiff's condition does not meet or equal a listed impairment, Plaintiff does not point to a listed impairment which is met or equaled, and does not suggest evidence which would support such a finding, and the court does not find any such evidence. It finds no error at step three.

Regarding RFC assessment and the step four and five findings, the ALJ stated he had considered Plaintiff's obesity in making that determination, and Plaintiff identifies no error in that regard. Plaintiff cites Hamby v. Astrue, 269 F.Appx. 108, 112 (10th Cir. 2008) for the proposition that the ALJ was required to, but did not, provide a discussion of the effect of obesity on Plaintiff's severe impairments, and cites Dewitt v. Astrue, 381 F.Appx. 782, 785-86 (10th Cir. 2010) for the proposition that nothing in the decision indicates how obesity influenced the ALJ in assessing RFC. The court notes that both of the cases cited by Plaintiff are unpublished opinions and are not precedent binding on this court other than as they are persuasive in the circumstances before the court. Both of the cases cited relied upon SSR 02-1p's recognition that obesity in combination with other impairments may or may not increase the severity of functional limitations, and its requirement that the agency will not make assumptions about the severity or functional effects of obesity but will evaluate each case based on ...

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