United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE
30, 2015, plaintiff filed an application for social security
disability insurance benefits. Plaintiff alleged a disability
onset date of May 26, 2011. The application was denied
initially and on reconsideration. An administrative hearing
was conducted on July 18, 2017. The administrative law judge
(ALJ) considered the evidence and decided on November 8, 2017
that plaintiff was not qualified to receive benefits. This
decision has been adopted by defendant. This case is now
before the court upon plaintiff's request to reverse and
remand the decision to deny plaintiff's application for
STANDARD OF REVIEW
qualify for disability benefits, a claimant must establish
that he or she was “disabled” under the Social
Security Act, 42 U.S.C. § 423(a)(1)(E), during the time
when the claimant had “insured status” under the
Social Security program. See Potter v. Secretary of
Health & Human Services, 905 F.2d 1346, 1347 (10th
Cir. 1990); 20 C.F.R. §§ 404.130, 404.131. To be
“disabled” means that the claimant is unable
“to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A).
court must affirm the ALJ's decision if it is supported
by substantial evidence and if the ALJ applied the proper
legal standards. See Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009). “Substantial
evidence” is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Wilson v. Astrue, 602 F.3d 1136,
1140 (10th Cir. 2010)(internal quotation marks
omitted). “It requires more than a scintilla, but less
than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). The court must
examine the record as a whole, including whatever in the
record fairly detracts from the weight of the defendant's
decision, and on that basis decide if substantial evidence
supports the defendant's decision. Glenn v.
Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting
Casias v. Secretary of Health & Human Services,
933 F.2d 799, 800-01 (10th Cir. 1991)). The court may not
reverse the defendant's choice between two reasonable but
conflicting views, even if the court would have made a
different choice if the matter were referred to the court de
novo. Lax, 489 F.3d at 1084 (quoting Zoltanski
v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)). The
court reviews “only the sufficiency of the
evidence, not its weight.” Oldham v. Astrue,
509 F.3d 1254, 1257 (10th Cir. 2007).
ALJ'S DECISION (Tr. 11-22).
is a five-step evaluation process followed in these cases
which is described in the ALJ's decision. (Tr. 12-13).
First, it is determined whether the claimant is engaging in
substantial gainful activity. Second, the ALJ decides whether
the claimant has a medically determinable impairment that is
“severe” or a combination of impairments which
are “severe.” At step three, the ALJ decides
whether the claimant's impairments or combination of
impairments meet or medically equal the criteria of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. Next, the ALJ determines the claimant's residual
functional capacity and then decides whether the claimant has
the residual functional capacity to perform the requirements
of his or her past relevant work. Finally, at the last step
of the sequential evaluation process, the ALJ determines
whether the claimant is able to do any other work considering
his or her residual functional capacity, age, education and
steps one through four the burden is on the claimant to prove
a disability that prevents performance of past relevant work.
Blea v. Barnhart, 466 F.3d 903, 907 (10th
Cir. 2006). At step five, the burden shifts to the
Commissioner to show that there are jobs in the economy with
the claimant's residual functional capacity. Id.
In this case, the ALJ decided plaintiff's application
should be denied at the fourth or fifth step of the
made the following specific findings in his decision. First,
plaintiff meets the insured status requirements for Social
Security benefits through December 31, 2016. Second,
plaintiff has not engaged in substantial gainful activity
since February 13, 2014. Third, plaintiff has the following
severe impairments: arthritis of the right shoulder and
obesity. Fourth, plaintiff does not have an impairment or
combination of impairments that meet or medically equal the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. Fifth, plaintiff has the residual functional capacity
(RFC) to perform light work as defined in 20 C.F.R.
404.1567(b) in that: she can lift and carry 20 pounds
occasionally and 10 pounds frequently; she can stand or walk
a total of 6 hours in an 8-hour workday and sit up to 6 hours
in an 8-hour workday; she can frequently climb ramps or
stairs and occasionally climb ladders, ropes, or scaffolds;
she can frequently stoop, kneel, crouch, and crawl; she can
occasionally reach overhead with her dominant right upper
extremity; and she can occasionally tolerate exposure to
vibration and to unprotected moving mechanical parts or
unprotected heights. Finally, the ALJ determined that
plaintiff can perform past relevant work as a cake decorator
and photography counter worker and other jobs existing in the
national economy, such as marker, routing clerk, and
photocopy machine operator.
first argument is that the ALJ failed to properly consider
plaintiff's obesity pursuant to SSR 02-1p and SSR 96-8p
in making his decision. The court rejects this argument for the
following reasons. First, the ALJ did consider and discuss
plaintiff's obesity. He listed plaintiff's height,
weight and body mass index as an indicator of obesity. (Tr.
18). He stated that plaintiff's obesity was a severe
impairment. (Tr. 13). He also noted the provisions of SSR
02-01p and said that the effects of plaintiff's obesity
were considered in determining plaintiff's RFC. Tr. 18
and Tr. 19 (“The claimant's obese body habitus [and
other factors] support the . . . residual functional capacity
assessment.”). Second, the ALJ considered the opinion
of an examining doctor, Dr. Fishman. (Tr. 19). Plaintiff's
obesity must have been a factor in his findings. The ALJ
considered plaintiff's activities of daily living (Tr.
18), which also must have involved the limitations from
obesity. Third, during the administrative hearing, plaintiff
did not claim obesity as a disabling factor. (Tr. 118-19);
see also Tr. 171, 179. This limits the impact of the alleged
error in considering and discussing the obesity factor.
court finds that these three factors distinguish this case
from the case cited by plaintiff, DeWitt v. Astrue,
381 Fed.Appx. 782, 784-86 (10th Cir.
2010) and that the ALJ's approach is similar
to that approved by the Tenth Circuit in Smith v.
Colvin, 625 Fed.Appx. 896, 899 (10th Cir.
2015); Arles v. Astrue, 438 Fed.Appx. 735, 740
(10th Cir. 2011); see also, Razo v.
Colvin, 663 Fed.Appx. 710, 716-17 (10th Cir.
2016); Rose v. Colvin, 634 Fed.Appx. 632, 637
(10th Cir. 2015).
Wrist pain and migraines
asserts that the ALJ did not properly evaluate the impact of
plaintiff's right wrist pain and migraine headaches when
calculating plaintiff's RFC. The ALJ did not explicitly
discuss these ailments during his step four analysis. But, he
stated that he had considered “all symptoms” and
the “intensity, persistence, and limiting effects of
the . . . symptoms to determine the extent to which they
limit [plaintiff's RFC].” (Tr. 16). The Tenth
Circuit's practice is to give credence to such comments.
Wall, 561 F.3d at 1070. The ALJ also addressed in
some detail the evidence regarding plaintiff's right
wrist and migraine impairments at Tr. 14 where he determined
that neither was “severe.” He noted that
plaintiff's “hand and wrist pain had no more than a
minimal effect on her ability to perform basic work related
activities, ” and that her migraines had been treated
with a NSAID for pain control. (Tr. 14).
must consider the combined effect of all impairments, severe
or non-severe, in deciding a claimant's RFC. Wells v.
Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013).
Upon a review of the record, the court credits the ALJ's
remark that “all symptoms” were considered and
finds that plaintiff's wrist pain and migraine headaches
were reasonably accounted for in the RFC determination.