United States District Court, D. Kansas
HENRY F. CROWDER, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE
an action reviewing the final decision of the Commissioner of
Social Security denying the plaintiff disability insurance
benefits. The matter has been fully briefed by the parties.
General legal standards
court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive." The court should review
the Commissioner's decision to determine only whether the
decision was supported by substantial evidence and whether
the Commissioner applied the correct legal standards.
Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence requires more than a scintilla, but less
than a preponderance, and is satisfied by such evidence that
a reasonable mind might accept to support the conclusion. The
determination of 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 really constitutes
mere conclusion. Ray v. Bowen, 865 F.2d 222, 224
(10th Cir. 1989). Although the court is not to reweigh the
evidence, the findings of the Commissioner will not be
mechanically accepted. Nor will the findings be affirmed by
isolating facts and labeling them substantial evidence, as
the court must scrutinize the entire record in determining
whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan.
1992). The court should examine the record as a whole,
including whatever in the record fairly detracts from the
weight of the Commissioner's decision and, on that basis,
determine if the substantiality of the evidence test has been
met. Glenn, 21 F.3d at 984.
Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period
of twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA). The claimant's
physical or mental impairment or impairments must be of such
severity that they are not only unable to perform their
previous work but cannot, considering their age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C.
Commissioner has established a five-step sequential
evaluation process to determine disability. If at any step a
finding of disability or non-disability can be made, the
Commissioner will not review the claim further. At step one,
the agency will find non-disability unless the claimant can
show that he or she is not working at a “substantial
gainful activity.” At step two, the agency will find
non-disability unless the claimant shows that he or she has a
“severe impairment, ” which is defined as any
“impairment or combination of impairments which
significantly limits [the claimant's] physical or mental
ability to do basic work activities.” At step three,
the agency determines whether the impairment which enabled
the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled. If
the claimant's impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her
previous work; unless the claimant shows that he or she
cannot perform their previous work, they are determined not
to be disabled. If the claimant survives step four, the fifth
and final step requires the agency to consider vocational
factors (the claimant's age, education, and past work
experience) and to determine whether the claimant is capable
of performing other jobs existing in significant numbers in
the national economy. Barnhart v. Thomas, 124 S.Ct.
376, 379-380 (2003).
claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120
(10thCir. 1993). At step five, the burden shifts
to the Commissioner to show that the claimant can perform
other work that exists in the national economy.
Nielson, 992 F.2d at 1120; Thompson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993). The Commissioner meets this burden if the decision is
supported by substantial evidence. Thompson, 987
F.2d at 1487.
going from step three to step four, the agency will assess
the claimant's residual functional capacity (RFC). This
RFC assessment is used to evaluate the claim at both step
four and step five. 20 C.F.R. §§ 404.1520(a)(4),
404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
History of case
October 22, 2015, administrative law judge (ALJ) Timothy G.
Stueve issued his decision (R. at 20-31). Plaintiff alleges
that he has been disabled since September 16, 2013 (R. at
20). Plaintiff is insured for disability insurance benefits
through December 31, 2018 (R. at 22). At step one, the ALJ
found that plaintiff has not engaged in substantial gainful
activity since the alleged onset date (R. at 22). At step
two, the ALJ found that plaintiff has severe impairments (R.
at 22). At step three, the ALJ determined that
plaintiff's impairments do not meet or equal a listed
impairment (R. at 23). After determining plaintiff's RFC
(R. at 24-25), the ALJ found at step four that plaintiff is
unable to perform past relevant work (R. at 29). At step
five, the ALJ found that plaintiff could perform other work
that exists in significant numbers in the national economy
(R. at 30). Therefore, the ALJ concluded that plaintiff was
not disabled (R. at 30-31).
Did the ALJ err in his evaluation of plaintiff's
two, the ALJ found that plaintiff's severe impairments
included obesity (R. at 22). This was the only specific
mention of obesity in the ALJ decision. Plaintiff argues that
the ALJ erred by failing to consider plaintiff's obesity
in accordance with SSR 02-1p.
02-1p is a social security ruling governing the evaluation of
obesity. It states that, when assessing RFC, obesity may
cause limitations of various functions, including exertional,
postural and social functions. Therefore, an assessment
should also be made of the effect obesity has upon the
claimant's ability to perform routine movement and
necessary physical activity within the work environment.
Obesity may also affect the claimant's ability to sustain
a function over time. In cases involving obesity, fatigue may
affect the individual's physical and mental ability to
sustain work activity. 2002 WL 32255132 at *7. The discussion
in the SSR on obesity and RFC concludes by stating that:
“As with any other impairment, we will explain how we
reached our conclusions on whether obesity caused any
physical or mental limitations.” 2002 WL 32255132 at
the ALJ did not specifically mention plaintiff's obesity
after making his step two findings, the ALJ, when making his
RFC findings, stated that he considered all of
plaintiff's symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence (R. at 25).
Plaintiff relies on the opinions of plaintiff's treating
physician, Dr. Knopp, regarding his limitations. However, the
reports from Dr. Knopp which plaintiff relies on to show that
he is disabled and has severe limitations, listed numerous
impairments, but made no mention of plaintiff's obesity
(R. at 500-501, 872-875). The ALJ, in making his RFC
findings, gave great weight to the opinions of the state
agency assessments by Dr. Coleman and Dr. Toubes-Klingler (R.
at 28). Dr. Coleman mentioned plaintiff's height
(69”) and weight (244 lb.) (R. at 88), or a body mass
index of 36. This reflects Level II obesity. SSR 02-1p, 2002
WL 32255132 at *3. Dr. Toubes-Klingler listed plaintiff's
BMI as 35; both indicated it was an exertional limitation
upon which their limitations were based (R. at 88, 108).
Therefore, their findings expressly took into consideration
has failed to point to any evidence in the record indicating
that plaintiff's obesity resulted in limitations not
included in the ALJ's RFC findings. See Arles v.
Astrue, 438 Fed.Appx. 735, 740 (10th Cir.
Sept. 28, 2011); Warner v. Astrue, 338 Fed.Appx.
748, 751 (10th Cir. July 16, 2009). On the facts