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May 17, 2004.


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 rehearing.

  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 ...

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