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Winifred Nelson v. Michael J. Astrue

March 15, 2013


The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge


This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge's ("ALJ") Residual Functional Capacity ("RFC") assessment is supported by substantial evidence; and

2. Whether the ALJ's credibility determination is supported by substantial evidence.

(JS at 4.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.



In Plaintiff's first issue, she contends that the ALJ erred in assessing her RFC, which he determined included the ability to perform light work with certain exertional and non-exertional restrictions. (AR 17.) In reaching this conclusion, the ALJ followed the five-step sequential evaluation process (AR 14-15), and determined at Step Two that Plaintiff's severe impairments are Type II diabetes mellitus, sleep apnea, obesity and arthritis. (AR 15.)

Plaintiff contends that there was inadequate consideration given to degenerative changes in her lumbar spine; shortness of breath on exertion; and whether her obesity has contributed to her back pain and shortness of breath. (JS at 4.) Conceding that the ALJ found Plaintiff has obesity as a severe impairment, she nevertheless contends that he failed to properly assess the effects of obesity on her ability to work. (Id.)

Plaintiff notes that there is no longer a Listing Level Impairment for obesity. Rather, the administrative requirements are set out in Social Security Ruling ("SSR") 02-01p, cited at JS 5. Essentially, SSR 02-01p notes that obesity can cause limitation of function in certain cases, and an assessment should be made of the effect of obesity upon an individual's ability to perform physical activities.

Without question, the ALJ acknowledged Plaintiff's obesity, not only at Step Two, but also by interpreting her medical records which demonstrate that obesity contributed to her back pain. (AR 16, citing Plaintiff's treatment records from Kaiser, at AR 166-196.) In particular, with regard to her back pain, the ALJ's assessment was that Plaintiff has degenerative changes in the lumbar area without central or neural foraminal stenosis, and further noted that Plaintiff's back impairment has not been considered significantly severe as to justify an MRI. (AR 16.) Although the parties do not cite any Ninth Circuit authority, the Court has reviewed the leading cases, Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003), and Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005). The facts of Plaintiff's case are very close to those cited by the Circuit's Opinion in Burch. The appellate court noted that, "Here, the record does not indicate that Burch's obesity exacerbated her other impairments (other than possibly her back pain)." (Id. at 682.) Similarly, the ALJ acknowledged here that Plaintiff's obesity may have contributed to or exacerbated her existing back pain as shown in her treatment records. Those treatments records indicate that Plaintiff was prescribed spine-oriented exercises, as reflected in a Progress Note of October 21, 2008. (AR 171.) At AR 171, it was noted that Plaintiff reports doing pool exercise and moves boxes at her mother's house. She was instructed on a home exercise program which included lat pulls, scap pinches, shoulder circles, seated low back stretch, abdominal isometrics while seated, ball exercises while seated, leg lifts, and pelvic tilt and circles. (AR 172.)

Reports of a physical examination contained in Plaintiff's treatment records indicate that she is obese but in no acute distress; has normal gait and is able to walk on her toes and heels; that her lower spine range of motion is slightly decreased in flexion; negative straight leg raising tests; negative femoral stretch; negative Patrick sign; negative S-1 ...

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