The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
Plaintiff motion for summary judgment is granted and defendant's
cross-motion is denied. This action is remanded to the Commissioner for
IT IS SO ORDERED AND ADJUDGED. ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Dennis Jaroch brings this action challenging the final
determination by Social Security Commissioner Jo Anne B. Barnhart denying
him disability benefits. Now before the Court are the parties'
cross-motions for summary judgment. Having carefully considered all
papers submitted, the Court hereby GRANTS plaintiff's motion for summary
judgment and DENIES defendant's motion for summary judgment for the
reasons stated below.
Plaintiff seeks review of the August 22, 2002 unfavorable decision by
Administrative Law Judge ("ALJ") Fenton Hughes regarding plaintiff's
claim for disability benefits. Plaintiff is a morbidly obese man who has
suffered from chronic back pain since approximately 1998. Pl's. Mot. at
2. Plaintiff also has numerous other ailments, including diabetes,
asthma, and vision loss. Pl's. Mot. at 2. He filed an application for
disability benefits on July 24, 2001. Pl's. Mot. at 2. Plaintiff
submitted to several medical evaluations and a vocational evaluation, and
filed multiple appeals. CT 27-33. After a formal hearing with an advocate
present, the Social Security Administration ultimately denied plaintiff's
application in a written opinion. CT at 7-18. Plaintiff filed a complaint in this Court on April 30, 2003, naming Jo
Anne Barnhart, the Commissioner of Social Security, seeking review of the
ALJ's adverse disability determination. Now before the Court is
plaintiff's motion for summary judgment, in which he argues that the ALJ
improperly failed to consider plaintiff's morbid obesity in rendering his
written decision. Pl's. Motion at 5. Defendant has filed a cross motion
for summary judgment, which is also before the Court.
A district court may disturb the final decision of the Secretary of
Health and Human Services ("Secretary") "only if it is based on legal
error or if the fact findings are not supported by substantial evidence."
Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987); see also
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). The
court's review "must consider the record as a whole," both that which
supports, as well as that which detracts from, the Secretary's decision.
Desrosiers v. Secretary of Health & Human Servs.,
846 F.2d 573, 576 (9th Cir. 1988). "Substantial evidence, considering the
entire record, is relevant evidence which a reasonable person might
accept as adequate to support a conclusion." Thomas v. Barnhart,
278 F.3d 947, 954 (9th Cir. 2002) quoting Flaten v. Secretary of
Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). This
level of evidence requires "more than a mere scintilla, but less than a
preponderance." Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.
1990) (citations omitted). "If the evidence admits of more than one
rational interpretation, [the Court] must uphold the decision of the
ALJ." Allen v. Heckler 749 F.2d 577, 579 (9th Cir. 1984).
citing Allen v. Secretary of Health & Human
Servs., 726 F.2d 1470, 1473 (9th Cir. 1984).
A disability under the Social Security Amendments Act of 1954 for
purposes of obtaining government benefits is defined as an "inability to
engage in substantial gainful activity by reason of medically
determinable physical or mental impairment."
42 U.S.C. § 423(d)(1)(A). The Social Security Agency, by way of implementing
regulations, assesses a claimant's eligibility for benefits under a
five-step sequential evaluation process.
20 C.F.R. § 404.1520(a)(4)(i)-(v); 20 C.F.R. § 416.920(a)(4)(i)-(v). The first
step of this process precludes a finding of disability for claimants who
are engaged in substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(i). The second step of the process precludes
a finding of disability for claimants whose medically determinable
impairments or combinations of impairments are not sufficiently severe. 20 C.F.R. § 404.1520(a)(4)(ii). The third step automatically classifies as
disabled those claimants whose impairments satisfy the requirements of a
particular "listing" in a given C.F.R. appendix.
20 C.F.R. § 404.1520(a)(4)(iii). If a claimant is found to be disabled
after the first three steps of the process, then benefits are awarded and
the sequential analysis ceases. Celaya v. Halter, 332 F.3d 1177,
1180 (9th Cir. 2003). For claimants who are not determined to be disabled
after the third step, the fourth step of the analysis precludes a finding
of disability for those who have a residual functional capacity ("RFC")
that allows them to perform past relevant work despite their impairments.
20 C.F.R. § 404.1520(a)(4)(iv). Finally, the fifth step of analysis
precludes a finding of disability for those claimants who cannot return
to past work, but can perform other work despite their impairments.
20 C.F.R. § 404.1520(a)(4)(v). Claimants not disqualified after step
five are eligible for benefits. Celaya, 332 F.3d at 1180.
At every point beyond the first step of the sequential analysis,
claimants must receive a review of all impairments as a combined whole.
For claimants who are not classified as disabled by reason of any single
impairment, the Secretary "shall consider the combined effect of all the
individual's impairments," regardless of the individual impact of any
single impairment. 42 U.S.C. § 423(d)(2)(B). The second step
explicitly refers to combinations of impairments in determining the
severity of impairment over time. 20 C.F.R. § 404.1520(a)(4)(ii). At
the third stage, multiple non-disabling impairments and non-qualifying
disabilities can be combined to meet the requirements of a disability
listing. Celaya at 1182 n.2. The Social Security regulations
cannot be read otherwise. Id The fourth and fifth steps of the sequential
analysis also require consideration of multiple impairments in assessing
a claimant's RFC. 20 C.F.R. § 404.1545(e);
20 C.F.R. § 416.945(e); SSR 96-8p.
Shifting burdens of proof also play a role in the sequential evaluation
process. See Bowen v. Yuckert, 482 U.S. 137, 146, 146 n.5,
107 S.Ct 2287, 2293-94, 2294 n.5 (1987) (noting shifting burdens of proof
within the sequential evaluation process). As a general matter, an
individual cannot be considered disabled unless "he furnishes such
medical and other evidence . . . as the Secretary [of Health and Human
Services] may require." 42 U.S.C. § 423(d)(5)(A). At the fifth stage
of the sequential evaluation process, however, the burden of proof shifts
to the government to show that a claimant is able to perform work
available in the national economy. Bowen, 482 U.S. at 146 n.5,
107 S.Ct. at 2294 n.5; Celaya, 332 F.3d at 1180. DISCUSSION
Obesity is no longer a qualifying disability and cannot, by itself,
qualify a claimant for disability benefits. 64 FR 46122; SSR 02-01. It
must, however, be considered in disability assessments, and remains
classified as a "determinable impairment that can be the basis for a
finding of disability." 64 FR 46122; SSR 02-01. In the context of obese
claimants, the sequential evaluation process is augmented by the
"special duty" of an Administrative Law Judge ("ALJ") to "fully and
fairly develop the record and to assure that the claimant's interests
are considered . . . even when the claimant is represented by counsel."
Celaya, 332 F.3d at 1183, quoting Brown v. Heckler.
713 F.2d 41, 443 (9th Cir. 1983). The ALJ "is not a mere umpire" at a
disability hearing, and must folly develop the record. Celaya
332 F.3d at 1183, quoting Higbee v. Sullivan, 975 F.2d 558,
561 (9th Cir. 1992). An ALJ breaches this duty by failing properly to
include a claimant's obesity in the sequential analysis, which can
result in reversible legal error. See, e.g. Celaya,
332 F.3d at 1183 (holding that it was reversible error for an ALJ to
exclude obesity from sequential analysis). Omitting factors such as
obesity that are implicitly raised by medical reports does not excuse
this failure. Id. at 1182.
Here, the ALJ had a duty to fully and fairly develop the record in
making a finding regarding plaintiff's disability. Similar to the
plaintiff in Celaya, plaintiff's morbid obesity is never
mentioned in the hearing transcript, but evidence of it is present in the
record. E.g. CT at 155, 174, 222, 223. Moreover, plaintiff
attended a hearing where he was questioned directly by the ALJ. CT
232-233, 234, 236, 238-239, 242-244. With an undisputed body mass index
falling within the morbidly obese range, plaintiff's condition should, as
a matter oflaw, have been apparent to the ALJ at the hearing.
Celaya, 332 F.3d at 1182. Thus, plaintiff's obesity was
implicitly raised. Celaya, 332 F.3d at 1182.
Part of the ALJ's duty, then, involved assessing the impact of
plaintiff's undisputed obesity on the various steps of the sequential
evaluation process. This never occurred. The ALJ's decision twice
mentions plaintiff's "size," but never as its own medically determinable
impairment, nor in the context of applying it to plaintiff's other severe
impairments to assess plaintiff's disability claim. CT at 12, 13.
Furthermore, the ALJ never considered plaintiff's obesity in determining
plaintiff's RFC or ability to perform other work available in the
national economy, the stage at which the burden of proof lies with the
government and entitled plaintiff to a favorable presumption.
Accordingly, the ALJ committed legal error in assessing plaintiff's
disability claim. The ...