The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act ("Act"). For the reasons that follow, Plaintiff's Motion for Summary Judgment is DENIED, the Commissioner's Cross Motion for Summary Judgment is GRANTED, and the Clerk is directed to enter judgment for the Commissioner.
Plaintiff, born November 9, 1981, applied on October 13, 2006 for disability benefits. (Tr. at 81.) Plaintiff alleged he was unable to work since February 25, 2006, due to chronic brain syndrome and a learning disorder. (Id. at 46, 47.) In a decision dated January 10, 2008, ALJ Laura Speck Havens determined plaintiff was not disabled. The ALJ made the following findings:*fn1
1. The claimant last met the insured status requirements of the Social Security Act through September 30, 2006.
2. The claimant has not engaged in substantial gainful activity since February 25, 2006, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).
3. The claimant has the following severe impairment: learning disability (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: limited to simple repetitive tasks.
6. The claimant is able to perform past relevant work as a general laborer but I will continue the analysis in the alternative (20 CFR 404.1565 and 416.965).
7. The claimant was born on November 9, 1981 and was 24 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
11. The claimant has not been under a disability, as defined in the Social Security Act, from February 25, 2006 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff has raised the following issues: A. Whether the ALJ's Findings at Step 2 are Incomplete, Leading to Errors at Step 3 and in Formulating Plaintiff's Residual Functional Capacity; B. Whether the ALJ Failed to Consider All the Medical Records; C. Whether the ALJ Made an Improper Credibility Finding; and D. Whether the ALJ Ignored Lay Witness Evidence. LEGAL STANDARDS
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. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "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). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). ANALYSIS
Plaintiff contends that the ALJ failed to find plaintiff's obesity, depression and Attention Deficit Hyperactivity Disorder ("ADHD") to be severe impairments at step two.
At the second step of the disability analysis, 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). At this step, the ALJ may decline to find a severe impairment "only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (emphasis in original).
The ALJ only found plaintiff's learning disability to be a severe impairment. (Tr. at 14.) The ALJ did not refer to plaintiff's obesity.
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. "Obesity may still enter into a multiple impairment analysis, but only by dint of its impact upon the claimant's musculoskeletal, respiratory, or cardiovascular system." Celaya v. Halter, 332 F.3d 1177, 1181 n. 1 (9th Cir. 2003).
The undersigned has reviewed the record for any indication of obesity and found no references other than plaintiff's testimony that he weighs about 300 pounds, and his disability report, indicating a weight of 297 pounds and height of five feet 11 inches. (Tr. at 39, 95.) There are no medical treatment records in the file. It appears that plaintiff could be characterized as extremely obese based on two references. See www.nhlbisupport.com/bmi. According to Social Security Ruling 02-1p, his body mass index (BMI) of 41.4 at weights between 297 and 300 categorize him at extremely obese.*fn2
Yet plaintiff has submitted no medical records whatsoever, let alone any records suggesting limitations from obesity. Plaintiff's initial filings with the Social Security Administration did not raise obesity as an impairment, but only his learning disability and chronic brain syndrome. (Tr. at 46, 47, 49.) Plaintiff's functional report does not list any physical limitations whatsoever. (Id. at 108.) Plaintiff was represented by counsel at his hearing who could have submitted medical records on his behalf, but did not do so, and also failed to raise obesity as an issue in the administrative proceedings. (Id. at 29.) At the administrative hearing, plaintiff's counsel questioned him in only a cursory manner about his weight. He asked him for his weight and height and if that was the reason he occasionally runs short of breath. He also asked plaintiff what the doctors had told him about his weight problem. Although plaintiff responded to these questions, his attorney made no effort to provide medical evidence to support this testimony. (Tr. at 39.) Plaintiff's counsel also did not raise obesity as a factor at the Appeals Counsel level, and provided no additional evidence. (Id. at 6-8.)
SSR 02-1p 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. at *6.) (emphasis added).
In this case, because there are no medical records whatsoever, including no record of a BMI, there was insufficient evidence or argument to put the ALJ on notice to consider it as a limiting factor, especially in light of the fact that plaintiff had no other physical problems whatsoever that would have been affected by his obesity, including no impairments in ...