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Barbara N. v. Berryhill

United States District Court, D. Kansas

March 7, 2019

BARBARA N., [1] Plaintiff,
NANCY A. BERRYHILL, 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) pursuant to sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding error in the Administrative Law Judge's (ALJ) apparent failure adequately to consider Plaintiff's obesity, the court ORDERS that the Commissioner's final decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this decision.

         I. Background

         Plaintiff argues that the ALJ erroneously failed to consider the effects of obesity when evaluating Plaintiff's disability, and in doing so failed to consider whether Plaintiff's impairments considered in their entirety meet or equal the severity of a Listed Impairment; failed to adequately explain the opinion evidence in assessing residual functional capacity (RFC); did not properly consider the medical opinion of Plaintiff's treating physician, Dr. Henry; and failed adequately to review the record in its entirety.

         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); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). 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), 416.920(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 process--determining at step four whether, considering 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, she 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 that the Commissioner's decision is unclear regarding the ALJ's consideration of Plaintiff's obesity and the court is unable from the decision reasonably to discern that the ALJ properly considered that issue when evaluating the record in this case. Consequently, remand is necessary for the Commissioner to consider the effect of Plaintiff's obesity on her abilities in the first instance. An adequate consideration of obesity may result in a different evaluation of the Listings at step three and may also affect evaluation of Plaintiff's allegation of symptoms, of the opinion evidence, and the assessment of Plaintiff's RFC. The court may not provide an advisory opinion on those issues.

         II. Consideration of Obesity

         Plaintiff acknowledges that she did not allege obesity as a disabling impairment, but notes that it was mentioned within the medical records and “was included by DDS [(the state Disability Determination Service used by the Social Security Administration)] as a severe impairment.” (Pl. Br. 18). She argues that the ALJ did not even mention obesity in his decision, consequently “the ALJ could not consider the effect that obesity has on [Plaintiff]'s spinal impairments as required by SSR [(Soc. Sec. Ruling)] 02-01.” Id. She argues, “The Sixth Circuit recognized that the failure to even mention obesity as an impairment is reversable [sic] error.” Id. (citing Rinker v. Commissioner of Social Security, 2017 U.S. Dist. LEXIS 98828; 2017 WL 2789440, *7 (E.D. Tenn. June 27, 2017) (“the complete exclusion of any mention of Plaintiff's obesity makes it impossible for the Court to tell if the ALJ actually considered this condition in formulating the RFC. Given the complete omission of any mention of Plaintiff's obesity (or how Plaintiff's impairments may have been compounded by her obesity) in the ALJ's decision, the Court [sic] finds the ALJ erred by failing to consider the impact of this condition as required by SSR 02-1p”) (citations omitted). She also argues that the ALJ's failure to consider obesity contributed to an erroneous consideration of Listing 1.04 (Disorders of the Spine) at step three of the sequential process (Pl. Br. 19-20), may have led to assessing lesser RFC limitations, id. at 20, and resulted in an inadequate explanation of “reasons for doubting the claimant's credibility.” Id. at 22.

         The Commissioner acknowledges that the ALJ did not discuss Plaintiff's obesity in his decision, but argues that he adequately considered obesity in the circumstances presented here in that he relied on medical opinions that took obesity into account. She argues further that Plaintiff points to no additional limitations related to obesity which are demonstrated by record evidence and that Plaintiff's argument regarding Listing 1.04 is neither supported by the law nor the record evidence.

         The court is unable to discern the ALJ's consideration of obesity in the circumstances of this case. As the Commissioner suggests, Plaintiff's argument conflates the requirement that an ALJ consider all the record evidence regarding obesity with a requirement to discuss all such record evidence. Such a requirement does not exist. Rather, in addition to discussing the evidence supporting his decision, the ALJ must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects. Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996).

         SSR 02-1p contains guidance for ALJ's when evaluating disability in someone who suffers from obesity. Titles II & XVI: Evaluation of Obesity, SSR 02-1P, 2002 WL 34686281 (S.S.A. Sept. 12, 2002). That ruling recognizes that when the Agency deleted Listing 9.09 for obesity in 1999 it “made some changes to the listings to ensure that obesity is still addressed in our listings.” 2002 WL 34686281 at *1. It explains:

In the final rule [(deleting Listing 9.09)], we added paragraphs to the prefaces of the musculoskeletal, respiratory, and cardiovascular body system listings that provide guidance about the potential effects obesity has in causing or contributing to impairments in those body systems. See listings sections 1.00Q, 3.00I, and 4.00F. The paragraphs state that we consider obesity to be a medically determinable impairment and remind adjudicators to consider its effects when evaluating disability. The provisions also remind adjudicators that the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately. They also instruct adjudicators to consider the effects of obesity not ...

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