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Glenn v. Astrue


September 3, 2008


The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is granted in part, the Commissioner's Motion for Summary Judgment is denied, and this matter is remanded to the ALJ for further findings as directed in this opinion. The Clerk is directed to enter judgment for plaintiff.


Plaintiff, born September 23, 1960, applied for disability benefits on September 6, 2004. (Tr. at 28, 20.) Plaintiff alleged she was unable to work since September 20, 2001, due to ruptured discs in the lower back and left knee problems. (Tr. at 19; 52, 16.)

In a decision dated July 14, 2006, ALJ Mark Ramsey determined that plaintiff was not disabled.*fn1 The ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity after September 20, 2001.

2. The medical evidence establishes that the claimant has degenerative joint disease, but that he [sic] does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, and Regulations No. 4.

3. The claimant's subjective complaints are not consistent with the evidence of record and not fully credible.

4. The claimant has the residual functional capacity for lifting 40 pounds occasionally, and 20 pounds frequently. The claimant can stand and walk for 6 hours, in an 8 hour day (in 1-2 hour increments), and sit for 6 hours, in an 8 hour day (in 2 hour increments). The claimant can bend on an occasional basis.

5. The claimant cannot perform her past relevant work. The claimant is 45 years of age and has a 12th grade education.

6. Rule 202.20, Appendix 1, Subpart P, Regulations No. 4, directs that the claimant is not disabled, as there are a significant number of jobs that she can perform.

7. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of this decision (20 CFR § 404.1520(e) and 416.920(e)).

(Tr. at 19.)


Plaintiff has raised the following issues: A. Whether the ALJ Erred in Failing to Consider Plaintiff's Morbid Obesity at Step Two; B. Whether the ALJ Rejected Plaintiff's Treating Physician Without A Legitimate Reason; C. Whether the ALJ Failed to Credit Plaintiff's Testimony Regarding Her Functional Limitations; and D. Whether the ALJ Failed to Adequately Assess Plaintiff's Residual Functional Capacity, Failed to Pose a Legally Adequate Hypothetical to the Vocational Expert, and Inappropriately Applied the Grids to Find Plaintiff Not Disabled.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420 (1971), quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206 (1938). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).


A. Whether Plaintiff's Obesity Constitutes a Severe Impairment Under Step Two

Plaintiff first contends that in considering her impairments at step two, the ALJ failed to consider plaintiff's obesity as a severe impairment. If this condition is not a severe impairment, there is no need to proceed with further consideration of its impact on plaintiff's functional capacity.

An impairment is not severe only if it "would have no more than a minimal effect on an individual's ability to work, even if the individual's age, education, or work experience were specifically considered." SSR 85-28. The purpose of step two is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287 (1987). "The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005), considered plaintiff's obesity at all stages of the sequential analysis in light of Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003). The Celaya factors include whether, despite plaintiff's failure to specifically raise obesity, it was raised as a disabling factor in plaintiff's report of symptoms, whether it was clear from the record that the obesity was close to the listing criterion, and could exacerbate the other alleged impairments, and whether the ALJ should have been on notice of the need to develop the record on obesity due to plaintiff's pro se status, in light of his observation of plaintiff and other information in the record. Id. at 1182.

The ALJ did address plaintiff's obesity briefly. He stated, "although the record shows that the claimant is obese, no physician has suggested any relating limitation, and the claimant has not alleged that she is limited by her weight." (Tr. at 18.) He also noted that although the records described plaintiff as obese, there were no other significant objective findings. (Id. at 17.) The court has reviewed the record for any indication of obesity and found several significant references. At 5 feet 8 1/2 inches tall,*fn2 plaintiff's weight fluctuated between 230 and 312 pounds. On July 22, 2003, exogenous obesity was listed as one of the diagnoses. (Tr. at 124.) Elsewhere, there are a few notes by practitioners when conducting a physical exam which described plaintiff's general presentation or advised her to lose weight. (Id. at 126, 136.)

Importantly, on two occasions plaintiff's weight was linked to her back problems. On November 13, 2004, Dr. Pliam noted plaintiff's morbid obesity and her limited lumbar motion and discomfort in her hip. He wanted to rule out degenerative arthritis which he would not expect at her young age except for the fact that she was considerably overweight. (Tr. at 150.) Objective studies later ruled out degenerative arthritis because although mentioned as a potential consequence of obesity; see SSR 02-01p; plaintiff was not diagnosed with this ailment and there was no evidence that her obesity caused her current problems. An x-ray of the pelvis and hips on October 13, 2005 indicated no severe arthritis. (Id. at 168.) On October 18, 2005, a bone scan of the hips was negative, but showed only mild increased activity in the left femoral head compared to the right side. (Id. at 167.)

On January 24, 2006, Dr. Corkill examined plaintiff and her MRI in regard to her back problems and stated, "I discussed with Ms. Glenn the situation that is going on with her lower back which is too much wear and tear for too many years in terms of her nursing work and her weight situation." (Id. at 181.) He recommended that she do "aqua therapy twice a week and lose weight and recondition her painful back." (Id.) There was no other reference, recommendation, or diagnosis in this regard made at the time.

It appears that plaintiff could be characterized as obese or extremely obese based on these records. See According to Social Security Ruling 02-01p, her body mass index (BMI) of between 35 and 47 at weights between 230 and 312 categorize her at obese to extremely obese.*fn3 Although plaintiff's initial filings with the Social Security Administration did not raise obesity as an impairment, but only her back, hip and bladder control problems, and functional limitations, her counsel strenuously raised obesity as an issue at every level of the administrative proceedings. The day before the administrative hearing plaintiff's counsel wrote a pre-hearing brief to the Office of Hearings and Appeals, pointing out obesity as a factor contributing to plaintiff's symptoms, and requesting that the record be held open for two weeks after the hearing to obtain a physical capacity evaluation form from Dr. Corkill. He added that plaintiff would testify at the hearing about obesity as a factor to her symptoms. (Tr. at 85-86.) Despite this letter, plaintiff's counsel at hearing questioned her in only a cursory manner about her weight. He asked her for her weight and height and whether her weight has been going up or down. Plaintiff responded that it was going up since she got hurt. (Tr. at 232.) The ALJ did state at the hearing that he would hold the record open for two weeks, and plaintiff submitted further records which mentioned obesity only once in passing. (Id. at 184-94.) Plaintiff's counsel raised obesity as a factor again at the Appeals Counsel level, contending that the ALJ did not adequately consider plaintiff's obesity, among other issues. (Tr. at 208.)

In this case, although there only a few reports discussing plaintiff's weight with very little recommendation, and no record of a BMI, there was sufficient evidence and argument to put the ALJ on notice to consider it as a limiting factor, especially in light of the fact that plaintiff's back and knee problems were surely affected by her obesity. A consideration of the impact of plaintiff's obesity on her back restrictions may make a difference to her limitations. As explained by Social Security Ruling 02-01p:

Furthermore, although SSR 02-01p makes clear that obesity is a disease that must be considered when evaluating disability, and the "combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately," the ALJ "will evaluate each case based on the information in the case record." (Id.)

Here, the record was clear and the ALJ should have found obesity to be a severe impairment, as well as substantively addressed the combined effects of obesity with other impairments. Even if it is ultimately determined that listing equivalence is not satisfied, the ALJ must take into account the fact of obesity at the other levels of the sequential analysis. This case cannot be "finally" adjudicated because this issue was not fully addressed. As required by Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993), the ALJ must consider obesity which exacerbates an impairment as an additive, impairing factor unless the ALJ makes a specific factual finding based on substantial evidence that the obesity is remediable. No such finding was or could be made on the present record. Accordingly, the matter will be remanded for further consideration by the ALJ and further development of the record if necessary.

B. Other Issues

The other issues raised by plaintiff will not be addressed at the present time, based on the remand which may affect various steps of the sequential process. Because the issue of plaintiff's obesity as an aggravating factor must be considered on remand, it is not necessary to address whether the ALJ properly rejected the opinion of treating physician Dr. Corkill at the present time. On remand, the ALJ could very well analyze this physician's records in a different light.

Plaintiff also challenges the ALJ's credibility finding. Because the matter is being remanded for further proceedings, the court will not reach this argument. However, on remand, if plaintiff's testimony regarding her subjective complaints is discredited, the ALJ must, in the absence of affirmative evidence showing that plaintiff malingering, set forth clear and convincing reasons for rejecting plaintiff's testimony." Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

Finally, plaintiff contests the ALJ's assessment of her residual functional capacity, including his hypothetical to the vocational expert and his application of the grids. This issue might also change with further analysis of obesity by the ALJ and therefore will not be considered at the present time.


Accordingly, plaintiff's Motion for Summary Judgment is GRANTED in part pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner's Cross Motion for Summary Judgment is DENIED, and this matter is remanded for further findings in accordance with this order. The Clerk is directed to enter Judgment for plaintiff.

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