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Doretta Kerl v. Michael J. Astrue

March 15, 2012

DORETTA KERL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



** E-filed March 15, 2012 **

NOT FOR CITATION

ORDER GRANTING IN PART AND DENYING IN PART PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT [Re: Docket Nos.17, 21]

United States District Court For the Northern District of California

In this Social Security action, plaintiff Doretta Kerl appeals a final decision by the Commissioner ("defendant") denying her application for Social Security disability insurance 18 benefits. Presently before the court are the parties' cross-motions for summary judgment. The matter 19 is deemed fully briefed and submitted without oral argument. Upon consideration on the moving 20 papers, and for the reasons set for below, plaintiff's motion for summary judgment is granted in part 21 and denied in part; defendant's motion for summary judgment is granted in part and denied in part, 22 and the case is remanded for further proceedings in accordance with this order. Pursuant to 28 23 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties have expressly consented that all proceedings in 24 this matter may be heard and finally adjudicated by the undersigned. 25

BACKGROUND

Doretta Kerl was 54 years old when the Administrative Law Judge ("ALJ") rendered the 27 decision under review in this action. Dkt. No. 17, p. 2-3. (Plaintiff's Motion for Summary Judgment, 28 or "Plaintiff's motion"). Her prior work experience is as a customer service representative. Id. She claims disability since May 4, 2007 due to arthritis in her cervical and lumbar spine, her hips, and 2 her left knee, which is exacerbated and complicated by obesity, and may have been caused or 3 partially caused by a fall on the job that occurred in 1997. Id. at 4. 4

("AR"), p. 15. She timely filed a request for hearing before an ALJ. In a decision dated July 22, 6 Plaintiff's claim was denied initially and upon reconsideration. Administration Record 2009, the ALJ found that the plaintiff was not disabled under the Social Security Act. Id. She 7 evaluated plaintiff's claim of disability using the five-step sequential evaluation process for 8 disability required under federal regulations. See 20 C.F.R. § 404.1520 (2007). At step one, she 9 found that Kerl had not engaged in substantial gainful activity since May 4, 2007. AR 17. At step 10 two, she found that plaintiff had osteoarthritis and low back pain and that these are "severe impairments." Id. But at step three, she concluded that plaintiff's impairments did not "meet[] or medically equal[] one of the listed impairments in 20 C.F.F. Part 404, Subpart P, Appendix 1." AR 13

18. At step four, she found that Kerl had the residual functional capacity ("RFC") to sit for six hours 14 and stand/walk for two hours during an eight-hour workday with a sit/stand option; lift/carry 20 15 pounds occasionally and 10 pounds frequently; push/pull with her right upper extremity 16 occasionally; and climb stairs, balance, stoop, bend, and crouch occasionally, but never crawl, kneel, or climb ladders. The ALJ found that plaintiff required a cane for ambulation and needed to avoid 18 moderate exposure to moving machinery, heights, and vibration. AR 19. Noting the inconsistency 19 between her finding and the plaintiff's assertions as to the intensity, persistence, and limiting effects 20 of her symptoms, the ALJ found that plaintiff's testimony was "not credible" insofar as it 21 contradicted the RFC finding. Id. At step five, the ALJ found that Kerl was not capable of 22 performing past relevant work, but that she had acquired work skills from past employment and was 23 capable of working as a telemarketer. AR 20-21. 24

The Appeals Council denied plaintiff's request for review, and the ALJ's decision became 25 the final decision of the Commissioner. Plaintiff now seeks judicial review of that decision. 26

Pursuant to 42 U.S.C. 405(g), this court has the authority to review the Commissioner's 28 decision to deny benefits. The Commissioner's decision will be disturbed only if it is not supported

LEGAL STANDARD

by substantial evidence or if it is based upon the application of improper legal standards. Morgan v. 2 Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521, 3 523 (9th Cir. 1995). In this context, the term "substantial evidence" means "more than a mere 4 scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might 5 accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin v. Sullivan, 6 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence exists to 7 support the Commissioner's decision, the court examines the administrative record as a whole, 8 considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where evidence 9 exists to support more than one rational interpretation, the court must defer to the decision of the 10

DISCUSSION

Plaintiff challenges the ALJ's finding on four grounds: (1) that the ALJ failed to adequately 13 consider the effects of plaintiff's obesity on her other impairments; (2) that the the ALJ's analysis of 14 the psychiatric evidence was not supported by substantial evidence; (3) that the ALJ improperly 15 discredited plaintiff's testimony and (4) that the ALJ improperly discredited plaintiff's daughter's testimony. Defendant asserts that the ALJ's findings were supported by substantial evidence and

free of legal error. 18

20 severe impairments. Dkt. No. 17, p. 5. Although obesity is no longer a listed impairment, the Social 21

Security Administration ("SSA") considers obesity to be a "medically determinable impairment" 22 that should be considered by the ALJ when determining disability. SSR 02-1P, 2002 WL 34686281 23

(S.S.A.). In determining whether a particular claimant's obesity is a medically determinable 24 impairment, "in the absence of evidence to the contrary in the case record, [the ALJ] will accept a 25 diagnosis of obesity given by a treating source or by a consultative examiner." Id. But, a diagnosis 26 of obesity "may or may not increase the severity or functional limitations of the other impairment" 27 depending on the facts of the individual case Id. 28

Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.

A. Whether the ALJ Considered Obesity In Combination with Plaintiff's Other Impairments Plaintiff argues that the ALJ wholly failed to consider plaintiff's obesity and its effect on her 2 even though medical records in the AR show that plaintiff was diagnosed with obesity by treating 3 physician Dr. Agastya. See, e.g., AR 174, 177, 181. Plaintiff also asserts that the ALJ's failure to 4 mention obesity indicates that the ALJ failed to consider the effect of obesity on plaintiff's severe 5 impairments. See Dkt. No. 17, p. 5. Defendant argues in opposition that plaintiffs have presented no 6 evidence that plaintiff's obesity caused functional limitations that are not already reflected in the 7

Here, plaintiff correctly asserts that the ALJ does not mention obesity anywhere in her report RFC. Dkt. No. 21, p. 4. Here, the record includes medical records showing that plaintiff was 8 diagnosed with obesity. See, e.g., AR 174 (listing a diagnosis of obesity without reference to its 9 effect on other conditions). The ALJ questioned plaintiff at hearing about her ability to walk, drive, 10 sit, stand, carry items, etc., but did not ask any questions about plaintiff's obesity or its effect on her abilities. AR 30-35. In addition, plaintiff testified to her weight and the fact that she had gastric bypass surgery. AR 36. From this court's review of the record, plaintiff did not offer any evidence 13 that her obesity exacerbated her other impairments, or caused functional limitations not reflected in 14 her testimony and the ALJ's findings. However, the ALJ's failure to even mention plaintiff's 15 obesity at any stage of her finding indicates a failure to consider the interactive effect of plaintiff's 16 impairments that does constitute reversible error.

When an ALJ identifies severe impairments at step two that are not dispositive at step three, 18 and obesity is identified as a condition that falls short of being a severe impairment, the ALJ "ha[s] 19 a responsibility to consider their interactive effect." Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 20 Cal. 2003). But, when the claimant does not specifically allege that obesity exacerbated her other 21 impairment(s) and claimant is represented by counsel, the ALJ's duty to ...


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