United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
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
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.
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.
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.
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.
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).
court addresses each alleged error in the order presented in
Consideration of Obesity
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.
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.
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).
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 ...