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Geer v. Astrue

March 4, 2010

MARIAM GEER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge

MEMORANDUM OPINION; AND ORDER THEREON

Plaintiff filed a complaint ("Complaint") on March 16, 2009, seeking review of the Commissioner's denial of her application for supplemental security income ("SSI") benefits. Now pending before the Court is the parties' Joint Stipulation (Joint Stip."). This Memorandum Opinion shall constitute the Court's findings of fact and conclusions of law.

DISPUTED ISSUES

As reflected in the parties' Joint Stipulation, the disputed issues herein are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly determined at Step Two of the Commissioner's sequential evaluation process that plaintiff's obesity was not a "severe" impairment.

2. Whether the ALJ properly rejected the opinion of plaintiff's treating physician.

3. Whether the ALJ erred in failing to consider the side effects of plaintiff's medications.

4. Whether the ALJ properly presented a complete hypothetical question to the vocational expert.

5. Whether the ALJ properly determined that plaintiff was capable of performing alternative work as a ticket checker and telephone quotation clerk.

DISCUSSION

I. Reversal is Not Warranted Based on the ALJ's Finding of Non-severity at Step Two with Regard to Plaintiff's Obesity

Plaintiff, who is 67" tall and weighs about 204 pounds (AR 684, 687) and was described by one neurologist as "morbidly obese" (AR 774), argues that the ALJ erred when he failed to find that her obesity constitutes a severe impairment. (Joint Stip. at 3-5, 7.) However, plaintiff never raised the issue of obesity in her application, the reports she filled out and submitted to the Agency in support of her application, or in her testimony before the ALJ. Further, a fair reading of the record suggests that plaintiff's weight had no impact on her ability to work. There is not a single medical opinion finding that plaintiff's weight caused or complicated any of her alleged impairments. Moreover, plaintiff never complained to any of her physicians that her weight was impairing her physical capabilities.

If plaintiff believed that her obesity constituted a severe impairment, she should have expressed such a disability, and placed the matter before the ALJ. This is particularly true where there is no evidence in the record that her weight interfered with her ability to work; where she never raised the issue; and where she was represented by counsel at the hearing, who also did not raise the issue during the hearing. See, e.g., Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511-12 (9th Cir. 1987) (denying request for remand to address impairment overlooked by ALJ even though some evidence of it existed in the record where claimant, represented by counsel, failed to raise impairment in administrative hearing, where impairment "was not significantly at issue at the hearing," and where claimant offered no explanation for his failure to press the claim at or before the hearing).

II. Reversal is Not Warranted Based on the ALJ's Alleged Failure to Properly Credit the ...


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