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Davis v. Colvin

United States District Court, Ninth Circuit

January 23, 2014

RODNEY DAVIS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ANDREW J. WISTRICH, Magistrate Judge.

Plaintiff filed this action seeking reversal of the decision of defendant, the Acting Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff protectively filed an application for SSI benefits on May 11, 2009, alleging that he had been disabled since March 18, 2008 due to a back injury, respiratory problems, a learning disability, and an ankle injury. [JS 2; Administrative Record ("AR") 138-140, 145]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") concluded that plaintiff was not disabled because he did not have a severe impairment or combination of impairments. [AR 10-19].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin. , 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart , 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin , 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel , 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas , 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999)).


Plaintiff contends that the ALJ erred in finding that plaintiff's obesity was not severe, either singly or in combination with his other medically determinable impairments. [See JS 3-13].

The ALJ found that plaintiff had medically determinable impairments consisting of back and ankle problems, sleep apnea, an inguinal hernia, obesity, status post gunshot wound to the abdomen, status post hemorrhoidectomy, an affective disorder, and substance abuse. The ALJ determined that those impairments, singly or in combination, did not significantly limit plaintiff's ability to perform basic work activities, and therefore that plaintiff did not have a severe impairment or combination of impairments. [AR 12].

A medically determinable impairment or combination of impairments is not "severe" 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 (9th Cir. 2006) (quoting Smolen v. Chater , 80 F.3d 1273, 1289-1290 (9th Cir. 1996)). To assess severity, the ALJ must determine whether a claimant's impairment or combination of impairments significantly limits his or her physical or mental ability to do "basic work activities." 20 C.F.R. §§ 404.1521(a), 416.921(a); see Webb , 433 F.3d at 686. Basic work activities are the "abilities and aptitudes necessary to do most jobs, " such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, speaking, understanding, carrying out, and remembering simple instructions; (3) the use of judgment; and (4) the ability to respond appropriately to supervision, co-workers, and usual work situations. 20 C.F.R. §§ 404.1521(b), 416.921(b). The ALJ is required to consider the claimant's subjective symptoms in making a severity determination if the claimant "first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s)." SSR 96-3p, 1996 WL 374181, at *2.

Medical reports in the record indicate that plaintiff was about six feet tall, and that his weight ranged from 328 pounds and 373 pounds, giving him a Body Mass. Index ("BMI") of between approximately 43 and 50.[1] [See JS 3-4; AR 200, 258, 271, 388, 391]. A BMI of 30 or above signifies obesity, and a BMI at or above 40 signifies "extreme" obesity, which represents the greatest risk for developing obesity-related impairments. SSR 02-01p, 2000 WL 628049, at *2 (discussing the National Institutes of Health BMI calculator and its significance). Plaintiff also has treating and examining source diagnoses of obesity and morbid obesity. [See, e.g., AR 203, 260, 265-266, 334, 415].

The Commissioner has determined that obesity is "a risk factor that increases an individual's chances of developing impairments in most body systems" and "may increase the severity of coexisting or related impairments, " especially musculoskeletal, respiratory, and cardiovascular impairments. SSR 02-1p, 2000 WL 628049, at *3, *5. When evidence of obesity is found in the record, the ALJ must consider and explain whether obesity, alone or interacting with other impairments, causes any physical or mental limitations. SSR 02-1p, 2000 WL 628049, at *3, *5; see also 20 C.F.R. Part 404, Subpart P, Appendix 1, ¶¶ 1.00Q, 3.00I & 4.00I (directing adjudicators to "consider any additional and cumulative effects of obesity" because obesity is "a medically determinable impairment often associated with" musculoskeletal, respiratory or cardiovascular impairments that "can be a major cause of disability in individuals with obesity, " and stating that the combined effects of obesity with other impairments may be greater than expected without obesity). The ALJ has a duty to determine the effect of obesity on a claimant's other impairments and its effect on the claimant's ability to work and general health, even when the claimant's obesity is not independently "severe" and is not explicitly alleged to be a "disabling factor." Celaya v. Halter , 332 F.3d 1177, 1182 (9th Cir. 2003) (reversing and remanding for a "multiple impairment analysis that explicitly accounts for the direct and marginal effects of the plaintiff's obesity during the period in question and that culminates in reviewable, on-the-record findings").

The ALJ noted the diagnoses of obesity in the record and said that he had considered plaintiff's weight in determining that plaintiff did not have a severe impairment. [AR 14-16]. The ALJ wrote that the record "does not show that the claimant has attempted to lose weight; in fact, he has gained weight since he filed his application. Regardless, there is no evidence the obesity affects him more than minimally." [AR 16].

To support his conclusion that there was no evidence that plaintiff's obesity more than minimally affected his ability to work, the ALJ cited imaging studies of the lumbar spine, bilateral ankles, and left hip that revealed only "mild" or "minimal" abnormalities. [AR 14-16, 278-279, 332-333, 337, 389, 398]. The ALJ also pointed to medical reports indicating plaintiff was treated for what the ALJ described as "aches and pains." [AR 14-16, 200-202, 251-252, 255-259, 345, 394]. The ALJ noted that plaintiff sought treatment for complaints of pain and itching due to perianal fissure and hemorrhoids and underwent surgery to remedy those conditions. [AR 14-15, 263-265, 268, 314-331, 342-343, 371]. A CPAP was recommended after a sleep study confirmed the existence of sleep apnea, but there was no evidence that plaintiff used a CPAP or received ongoing treatment for a sleep disorder. [AR 14, 267, 281-292]. Plaintiff sought treatment for complaints of chest pain, urinary incontinence, and acid reflux, but the ALJ noted that physical examinations were mostly normal, and that there was no evidence that those conditions significantly ...

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