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Diana Gutierrez v. Carolyn W. Colvin

April 25, 2013

DIANA GUTIERREZ,
PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,*FN1
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on October 19, 2012, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on December 6, 2012.

Plaintiff filed a motion for summary judgment on March 25, 2013. Defendant filed a motion for summary judgment on April 22, 2013. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed October 22, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff asserts disability based on a combination of alleged impairments (Administrative Record ("A.R.") 34-49, 82, 370, 392-93, 423). An Administrative Law Judge ("ALJ") examined the medical record and heard testimony from Plaintiff and from a vocational expert (A.R. 10-450).

The ALJ found that Plaintiff "has the following severe impairment[s]: medial tibial stress syndrome (shin-splits), right plantar fasciitis, lumbar myofascial strain, and right rotator cuff tendinosis" (A.R. 12). The ALJ found that, despite these severe impairments, Plaintiff retains the residual functional capacity to perform "a limited range of sedentary and light work" (A.R. 13). According to the ALJ, Plaintiff cannot perform her past relevant work, but can perform other jobs (A.R. 19-21). The medical record reflects Plaintiff's obesity, but the ALJ's decision does not mention obesity (A.R. 10-21, 297, 390, 416).*fn2 The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

I. The Administration Erred in Failing to Consider or Discuss Plaintiff's Obesity.

Social Security Ruling ("SSR") 02-1p governs the evaluation of obesity.*fn3 Obesity "commonly leads to, and often complicates, chronic diseases of the cardiovascular, respiratory, and musculoskeletal body systems." SSR 02-1p (emphasis added). The Administration should consider "the effect obesity has upon the individual's ability to perform routine movement and necessary physical activity within the work environment . . . The combined effects of obesity with other impairments may be greater than might be expected without obesity. . . . [W]e will explain how we reached our conclusions on whether obesity caused any physical or mental limitations." SSR 02-1p (emphasis added).

In the present case, the ALJ failed to discharge the Administration's responsibilities under SSR 02-1p. If the ALJ failed to consider the possible effects of Plaintiff's obesity, the ALJ thereby erred. Id.; see Edwards-Alexander v. Astrue, 336 Fed. App'x 634, 637 (9th Cir. June 16, 2009). If the ALJ did consider the possible effects of Plaintiff's obesity, but concluded that the obesity did not cause Plaintiff any additional limitations, the ALJ erred by ...


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