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Hansel v. Berryhill

United States District Court, D. Kansas

May 1, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          John W. Lungstrum United States District Judge

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error in the Administrative Law Judge's (ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision.

         I. Background

         Plaintiff applied for DIB, alleging disability beginning July 4, 2008. (R. 20, 237). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She argues that the ALJ erred pursuant to Social Security Ruling (SSR) 02-1p when considering Plaintiff's obesity, erred in weighing the medical opinion of her primary care physician, and failed when assessing residual functional capacity (RFC) to consider adequately the impairments found not severe.

         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 she 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; 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 addresses each alleged error in the order presented in Plaintiff's Brief.

         II. Consideration of Obesity

         Plaintiff claims the ALJ made inconsistent findings relating to the functional effects of her obesity and therefore it is impossible to understand the basis for the RFC assessed. (Pl. Br. 12-13). She argues that SSR 02-1p recognizes the potentially “wide ranging effects of obesity, including pulmonary function, mental health functioning, and fatigue, ” and that each of these issues is present in this case. Id. at 14. She concludes that “[b]ecause the ALJ failed to provide any analysis about the effect of obesity on these underlying problems, we are unable to determine whether her decision complied with” the SSR. Id. The Commissioner argues that the ALJ adequately considered obesity. She argues that there is no discrepancy such as that alleged by Plaintiff, that the ALJ gave great weight to the opinions of the state agency physicians-thereby accounting for the functional effects of obesity-and that the ALJ repeatedly addressed Plaintiff's obesity in the decision at issue. (Comm'r Br. 5-6). In her Reply Brief, Plaintiff argues that “it is entirely unclear whether the ALJ considered the effects of obesity at step four and five, ” and that the court “cannot determine whether the sedentary work capacity [assessed] includes consideration of obesity or not.” (Reply 2). She argues that, in any case, the ALJ did not consider the effects of obesity on her Chronic Fatigue Syndrome-which would likely cause her to miss work more than three times a month and would likely cause a need for extra breaks during the workday-and failed to consider obesity's effect on breathing problems wherein she “repeatedly complained of shortness of breath.” Id. at 3-4.

         As Plaintiff argues, SSR 02-1p, Titles II and XVI: Evaluation of Obesity provides guidance on Social Security Administration (SSA) policy concerning the evaluation of obesity in disability claims, and requires that adjudicators will explain how they reached their conclusion whether obesity caused any physical or mental limitations. West's Soc. Sec. Reporting Serv., Rulings 257 (Supp. 2016). In her step three discussion whether Plaintiff's condition meets or medically equals a Listed impairment, the ALJ noted that she had considered Plaintiff's obesity pursuant to SSR 02-1p. (R. 25). In finding no Listing met or medically equaled, she noted that “the medical evidence does not indicate that the claimant's obesity has resulted in any significant adverse effect on her functional abilities.” Id. (emphasis added). When discussing RFC assessment between step three and step four of the evaluation, the ALJ weighed the medical opinions and accorded great weight to the opinions of the state agency physicians and psychologists who prepared the Disability Determination Explanation, “particularly the most recent assessment.” (R. 30) (citing Ex. 4A (R. 162-76)).

         As Plaintiff points out, the state agency physicians found Plaintiff was limited to sedentary level exertion in part “because of severe obesity with a BMI [(body mass index)] ¶ 45.1” (R. 172), has postural limitations “because of chronic knee pain secondary to claimant's obesity and probable DJD [(degenerative joint disease)], ” id., and has environmental limitations “because of severe obesity, [and] problems breathing (undiagnosed etiology).” (R. 173). Plaintiff argues that there is a “discrepancy” between these opinions of the state agency physicians and the ALJ's step three finding that obesity has not resulted in any significant adverse effect on Plaintiff's functional abilities, making it impossible to understand the ALJ consideration of obesity. (Pl. Br. 13).

         Plaintiff's argument misunderstands the decision. A step three determination is concerned with whether a claimant's condition meets or equals the severity of a Listed impairment. “The listings define impairments that would prevent an adult, regardless of [her] age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.'” Sullivan v. Zebley,493 U.S. 521, 532-33 (1990) (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)). At step three, therefore, it is notable that obesity has not resulted in any significant adverse effect on Plaintiff's functional abilities because without such significant adverse effect, Plaintiff's condition cannot meet or equal a Listing. Contrary to Plaintiff's implications, the ALJ did not find that Plaintiff's obesity had no adverse effect on her functional abilities, just no significant adverse effect. As ...

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