Byner v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION, as set out. Signed by Judge Sharon Lovelace Blackburn on 1/16/15. (CTS, )

FILED
2015 Jan-16 PM 03:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTOINETTE MARIA BYNER,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case Number 2:13-cv-2220-SLB

MEMORANDUM OPINION
Plaintiff Antoinette Maria Byner brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final decision of the Commissioner of Social Security denying her
application for supplemental security income [“SSI”]. Upon review of the record, the
submissions of the parties, and the relevant law, the court is of the opinion that the
Commissioner’s decision is due to be affirmed in part. Because the decision of the
Commissioner of Social Security fails to evaluate plaintiff’s obesity in the assessment of
plaintiff’s residual functional capacity, the decision will be remanded for further proceedings
not inconsistent with this opinion.
I. PROCEDURAL HISTORY
Plaintiff initially filed an application for SSI on August 16, 2008, alleging a disability
onset date of July 1, 2008. (R. 18.)1 This application was denied on October 21, 2008 by the
Reference to a document number, (“Doc.___”), refers to the number assigned to each
document as it is filed in the court’s record. References to page numbers in the
Commissioner’s record are set forth as (“R.___”).
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Social Security Administration [“SSA”], and plaintiff subsequently requested a hearing
before an Administrative Law Judge [“ALJ”], which was held on February 11, 2010. (R. 18.)
The ALJ rejected plaintiff’s application on April 28, 2010. (R. 18, 90.) Plaintiff then filed
another application for SSI on October 20, 2010, alleging a disability onset date of October
1, 2006, which plaintiff later amended to October 20, 2010. (R. 18, 36, 94.) The SSA denied
plaintiff’s application on January 26, 2011. (R. 18, 107.) Subsequently, plaintiff requested
a hearing before an ALJ, which was held on June 12, 2012. (R. 33, 121.) After the hearing,
the ALJ found that, while plaintiff was unable to perform any past relevant work, she was
capable of making a vocational adjustment to other occupations, such as retail associate,
ticket seller, counter sales clerk, and cashier, which are jobs that exist in significant numbers
in Alabama and in the national economy. (R. 25-26.) In light of these findings, the ALJ
denied plaintiff’s request for SSI on July 3, 2012. (R. 26.)
On August 7, 2012, plaintiff, with the assistance of new counsel, petitioned the
Appeals Council to review the ALJ’s decision, (R. 12), and thereafter, submitted arguments
for review, (R. 268-72). On October 10, 2013, the Appeals Council denied plaintiff’s request
for review, thereby rendering the ALJ’s decision the final decision of the Commissioner of
Social Security. (R. 1.) Following denial of review by the Appeals Council, plaintiff filed an
appeal in this court on December 9, 2013. (Doc. 1.)

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II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court “is limited to an
inquiry into whether there is substantial evidence to support the findings of the
Commissioner, and whether the correct legal standards were applied.” Wilson v. Barnhart,
284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir.
1988). The court gives deference to factual findings and reviews questions of law de novo.
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court “may not decide the
facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner];
rather the court must scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))
(internal quotations and other citation omitted). “The Commissioner’s factual findings are
conclusive if supported by substantial evidence.” Wilson, 284 F.3d at 1221 (citing Martin,
894 F.2d at 1529; Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). “Substantial evidence
is more than a scintilla and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936
F.2d at 1145. “[N]o . . . presumption of validity attaches to the [Commissioner’s] conclusions
of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III. DISCUSSION
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A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for SSI.2 See 20 C.F.R. § 404.1520(a)(1)-(2);
Bowen v. City of New York, 476 U.S. 467, 470 (1986). For the purposes of this evaluation,
the meaning of disability is the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected
to result in death or has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). The specific steps in the
evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987).3 If the claimant

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The Regulations state:
The sequential evaluation process is a series of five “steps” that we follow in
a set order. . . . If we can find that you are disabled or not disabled at a step,
we make our determination or decision and do not go on to the next step. If we
cannot find that you are disabled or not disabled at a step, we go on to the next
step. Before we go from step three to step four, we assess your residual
functional capacity. . . . We use this residual functional capacity assessment
at both step four and step five when we evaluate your claim at these steps.

20 C.F.R. § 404.1520(a)(4).
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The Regulations define “substantial gainful activity”:
(a) Substantial work activity. Substantial work activity is work activity
that involves doing significant physical or mental activities. Your work
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is engaged in substantial gainful activity, the Commissioner will find that the claimant is not
disabled, regardless of the claimant’s medical condition or her age, education, and work
experience. 20 C.F.R. § 404.1520(b); § 416.920(b). “Under the first step, the claimant has
the burden to show that she is not currently engaged in substantial gainful activity.”
Reynolds-Buckley v. Comm’r of Soc. Sec., 457 F. App’x 862, 863 (11th Cir. 2012).4
The ALJ found that plaintiff had not engaged in substantial gainful activity since
October 20, 2010, the alleged onset date. (R. 20.)

2. Severe Impairments

may be substantial even if it is done on a part-time basis or if you do
less, get paid less, or have less responsibility than when you worked
before.
(b) Gainful work activity. Gainful work activity is work activity that
you do for pay or profit. Work activity is gainful if it is the kind of
work usually done for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like
taking care of yourself, household tasks, hobbies, therapy, school
attendance, club activities, or social programs to be substantial gainful
activity.
20 C.F.R. § 404.1572.
Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be unpublished
unless a majority of the panel decides to publish it. Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
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If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c); § 416.920(a)(4)(ii), (c). “[A] ‘physical
or mental impairment’ is an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); § 1382c(a)(3)(D). The regulations
provide: “[I]f you do not have any impairment or combination of impairments which
significantly limits your physical or mental ability to do basic work activities, we will find
that you do not have a severe impairment and are, therefore, not disabled. We will not
consider your age, education, and work experience.” 20 C.F.R. § 404.1520(c); § 416.920(c).
An impairment is “severe” if it “significantly limits [a] claimant’s physical or mental
ability to do basic work activities.”5 Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.
1997); 20 C.F.R. § 404.1520(c); 20 C.F.R. § 404.1521(a). When an impairment “is a slight

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Basic work activities include:
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) [c]apacities for
seeing, hearing, and speaking; (3) [u]nderstanding, carrying out and
remembering simply instructions; (4) [u]se of judgment; (5)
[r]esponding appropriately to supervision, co-workers and usual
work situations; and (6) [d]ealing with changes in a routine work
setting.

20 C.F.R. § 404.1521(b)(1)-(6).
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abnormality which has such a minimal effect on the individual that it would not be expected
to interfere with the individual’s ability to work, irrespective of age, education, or work
experience,” it will be classified as non-severe. Brady v. Heckler, 724 F.2d 914, 920 (11th
Cir. 1984); see also SSR 85-28, 1985 WL 56856 (1985). A claimant may be found disabled
based on a combination of impairments even though none of the individual impairments
alone are disabling. Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987); see also 20
C.F.R. § 404.1523; § 416.923. A claimant has the burden to show that she has a severe
impairment or combination of impairments. Reynolds-Buckley, 457 F. App’x at 863.
The ALJ found that plaintiff had the following severe impairments: “degenerative disc
disease of the cervical and lumbar spine, status-post cervical spine surgery; asthma; chest
pain, probable costochondritis; and bilateral heel spurs.” (R. 20.) The ALJ found that
plaintiff’s additional limitations of hypertension, obesity, carpal tunnel syndrome, and
depression were non-severe because those “conditions constitute[d] at most only a slight
abnormality that cannot reasonably be expected to produce more than minimal, if any, workrelated limitations.” (R. 21.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the duration requirement and whether it is
equivalent to any one of the listed impairments. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e);
§ 404.1525; § 404.1526. Listed impairments are so severe that they prevent an individual
from performing substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20
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C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If the claimant’s impairment meets or
equals a Listing, the Commissioner must find the claimant disabled, regardless of the
claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d); § 416.920(d). The
claimant has the burden of proving that her impairment meets or equals the criteria contained
in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that plaintiff did not have an impairment or combination of
impairments that met or medically equaled a Listing. (R. 22.) Specifically, the ALJ found
that medical evidence did not establish impairments equaling listings 1.04 for a spinal
disorder, 3.03 for asthma, or 1.02 for major dsyfunction of a joint. (R. 22-23.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment does not meet or equal the criteria of a Listing, the claimant must
prove that her impairment prevents her from performing her past relevant work. See 20
C.F.R. § 404.1520(a)(4)(iv), (f); § 416.920(a)(4)(iv), (f). At step four, the Commissioner
“will first compare [the Commissioner’s] assessment of [the claimant’s] residual functional
capacity [“RFC”] with the physical and mental demands of [the claimant’s] past relevant
work.” 20 C.F.R. § 404.1560(b); § 416.960(b). “Past relevant work is work that [the claimant
has] done within the past 15 years, that was substantial gainful activity, and that lasted long
enough for [her] to learn to do it.” 20 C.F.R. § 404.1560(b)(1); § 416.960(b)(1). If the
claimant is capable of performing her past relevant work, the Commissioner will find that
she is not disabled. 20 C.F.R. § 404.1560(b)(3); § 416.920(f). The claimant bears the burden

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of establishing that the impairment prevents her from performing past work.
Reynolds-Buckley, 457 F. App’x at 863.
The ALJ found that plaintiff had a high school education and was an individual
closely approaching advanced age on the alleged onset date. (R. 25.) The ALJ made the
following findings regarding plaintiff’s RFC:
[T]he claimant has the residual functional capacity to perform light
work . . . except the claimant can never climb ladders, ropes, or
scaffolding; can occasionally perform other postural activities; can
frequently but not constantly perform overhead reaching, handling, or
fingering with her right upper extremity; cannot work around hazards;
and should avoid concentrated exposure to temperature extremes and
respiratory irritants.
(R. 23.) The ALJ found that plaintiff’s RFC restricted her from performing any past relevant
work. (R. 25.)
5. Other Work in the National Economy
If the claimant establishes that she is unable to perform her past relevant work, the
Commissioner must show that the claimant—in light of her RFC, age, education, and work
experience—is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 F. App’x at 863; see also 20 C.F.R.
§ 404.1520(c)(1); § 416.920(g). The regulations provide:
If we find that your residual functional capacity does not enable you to do any
of your past relevant work . . . we will use the same residual functional
capacity assessment when we decide if you can adjust to any other work. We
will look at your ability to adjust to other work by considering your residual
functional capacity and the vocational factors of age, education, and work
experience . . . . Any other work (jobs) that you can adjust to must exist in
significant numbers in the national economy (either in the region where you
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live or in several regions in the country).
20 C.F.R. § 404.1560(c)(1); § 416.960(c)(1). If the claimant is not capable of performing
such other work, the Commissioner must find the claimant disabled. 20 C.F.R.
§ 404.1520(g); § 416.920(g).
The ALJ consulted a Vocational Expert [“VE”] to determine whether any jobs exist
in the national economy that plaintiff could perform, considering her RFC, age, education,
and work experience. The VE testified that an individual with plaintiff’s limitations and
vocational factors could perform the jobs of retail sale associate, ticket seller, counter sales
clerk, and cashier, which are jobs that exist in significant numbers in Alabama and in the
national economy. (R. 51-52.)
Because the ALJ found that jobs consistent with plaintiff’s RFC and vocational
factors exist in significant numbers, the ALJ found that plaintiff was not disabled. (Id.)
B. MS. BYNER’S CLAIMS
Plaintiff raises two issues on appeal: (1) whether the ALJ erred in failing to report a
consultative exam and in failing to further develop the record; and (2) whether the ALJ failed
to properly consider the effects of plaintiff’s depression and obesity. (Doc. 9 at 11-12.)

1. Plaintiff’s Consultative Exam and Development of the Record
Plaintiff alleges that the ALJ failed to report plaintiff’s consultative exam (“CE”) in
the ALJ’s assessment of plaintiff’s RFC. Because the SSA requested that a physician perform
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the CE, plaintiff asserts that an “inconsistency” or “inefficiency” in the evidence must have
existed that warranted that request, and therefore, the ALJ was required to further develop
the record to resolve that “inconsistency” or “insufficiency” when the ALJ chose not to
report plaintiff’s CE.6 (Doc. 9 at 8, 11.) Plaintiff also challenges the ALJ’s choice not to
further develop the record by obtaining another medical source opinion through a
consultative or medical exam. The court finds that the ALJ did report the CE in his
assessment of plaintiff’s RFC and that the ALJ committed no error by not requesting an
additional medical source opinion.
Social Security Ruling 96-7p explains the two step process set out in 20 C.F.R.
§ 404.1529 and § 416.929 that the ALJ must follow7: “First, the adjudicator must consider
whether there is an underlying medically determinable physical or mental impairment—i.e.,
an impairment(s) that can be shown by medically acceptable clinical and laboratory
diagnostic techniques—that could reasonably be expected to produce the individual’s pain
or other symptoms.” This determination does not consider the “intensity, persistence, or

Notably, plaintiff does not identify the inconsistency or insufficiency she claims the ALJ
failed to resolve by not developing the record. (See Doc. 9.)
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Apparently the Eleventh Circuit considers the standard set out in the regulations and the
standard in Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991), as one and the same.
Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002) (“Furthermore, the ALJ cites to
20 C.F.R.§ 404.1529, which contains the same language [as Holt] regarding the
subjective pain testimony that this Court interpreted when initially establishing its
three-part pain standard. In citing to § 404.1529 and based on the findings and discussion,
it is clear that the ALJ applied this Circuit's pain standard [from Holt].”). Because SSR
96-7p offers an in-depth explanation of the regulations and is more recent than Holt, the
court looks to it for guidance.
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functionally limiting effects of the individual’s symptoms.” SSR 96-7p. If the ALJ finds that
the plaintiff’s case survives the first step, then
the adjudicator must evaluate the intensity, persistence, and
limiting effects of the individual’s symptoms to determine the
extent to which the symptoms limit the individual’s ability to do
basic work activities. For this purpose, whenever the
individual’s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the adjudicator
must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.
SSR 96-7p.
The ALJ found that, under step one, “the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” but under step
two, “the claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.” (R. 24.)
Contrary to plaintiff’s claim, the ALJ accepted and reported the CE performed by Dr.
David Aarons on January 13, 2011, by stating that Dr. Aarons’s assessment supports the
ALJ’s finding that plaintiff “could not perform more than a light level of exertion with
limited postural abilities, exposure to hazards, and limited exposure to certain environmental
conditions.” (R. 24.) The ALJ’s opinion is consistent with the CE performed by Dr. Aarons
because the ALJ found that plaintiff suffers from the same severe impairments noted by Dr.
Aarons in his report: degenerative disc disease of the cervical and lumbar spine, chest pain,
shortness of breath, and heel spurs. (R. 20, 491.)
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While Dr. Aarons’s opinion supports plaintiff’s claim that she suffers from several
severe impairments, the CE report does not limit plaintiff’s activities or otherwise remark on
her physical capabilities, thereby shedding little light on the limiting effects of plaintiff’s
impairments. Additionally, there is no objective medical evidence in the record to support
plaintiff’s statements about the intensity, persistence, or functionally limiting effects of her
pain. (See R. 514.) “[W]henever the individual’s statements about the intensity, persistence,
or functionally limiting effects of pain or other symptoms are not substantiated by objective
medical evidence, the adjudicator must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.” SSR 96-7p. No error resulted
from the ALJ’s choice not to further develop the record because the ALJ relied on substantial
evidence to assess plaintiff’s credibility.
First, the ALJ relied on plaintiff’s activities of daily living to discredit her testimony
about the intensity, persistence, and limiting effects of her pain. The ALJ’s opinion states
that, contrary to plaintiff’s assertions that her children take care of her, that she cannot raise
her arms, pick up her feet, hold onto objects, or bend, and that she is constantly dizzy,
plaintiff is able to “shop in stores, vacuum, sweep, wash dishes, dress, perform household
chores and self-care activities, and talk on the phone.” (R. 24.)
The ALJ’s reliance on several of plaintiff’s daily activities is misplaced. First, the ALJ
stated that plaintiff can perform household chores, such as sweeping and vacuuming, but
plaintiff stated in a Function Report that she needs help sweeping, vacuuming, washing
dishes and performing household chores. (R. 229.) While the Function Report does not state
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the extent to which plaintiff needs help, it indicates that plaintiff does not perform those
activities alone. Plaintiff also testified at the ALJ hearing that her impairments prevent her
from sweeping and vacuuming. (R. 47.) Regarding self-care activities, plaintiff consistently
stated in the record that she requires help. In a Function Report, plaintiff stated that her son
cooks for her and that her daughter helps her dress and wash and braid her hair. (R. 226, 22829.) The CE report completed by Dr. Aarons is consistent with that Function Report, as it
notes that plaintiff bathes and dresses with assistance because she cannot wash her back, feet,
or lower legs and cannot raise her arms over her head in order to put on clothes. (R. 488.)
These activities of daily living do not constitute substantial evidence upon which the ALJ
could rely to discredit plaintiff’s testimony of pain.
However, the ALJ relied on additional evidence. The ALJ considered plaintiff’s
persistent smoking habit and concluded that the allegedly limiting effects of plaintiff’s
breathing problems are inconsistent with plaintiff’s continued use of tobacco. (R. 24.)
Plaintiff admitted to smoking approximately six cigarettes per day despite doctors’ advice
that she should quit, and at least four doctors documented plaintiff’s smoking habit during
plaintiff’s alleged period of disability. (R. 39, 480, 482, 488, 524.) The ALJ also found that
plaintiff’s daily activity of talking on the phone contradicts her testimony that she cannot
hold onto objects due to muscle weakness. (R. 24, 41, 231.)
The ALJ considered reports by a State reviewing physician, Dr. Robert Heilpurn, and
a report by examining physician Laura Hughes. While Dr. Heilpurn noted that, based on the
record, he believed plaintiff’s statements that she experienced pain while performing
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physical activity were credible, he also reported that plaintiff could sit, stand, and walk six
hours in an eight-hour workday, occasionally lift up to twenty pounds, frequently lift up to
ten pounds, and push or pull without limitation. (R. 509.) Thus, his opinion reflects that,
while plaintiff did experience pain from her impairments, those impairments were not as
limiting as plaintiff alleged. Dr. Laura Hughes’s report supports this assessment. (R. 540.)
She took x-rays of plaintiff’s wrists, hands, ankles, and feet after plaintiff sought treatment
for pain and reported that x-rays of plaintiff’s feet showed “rudimentary heel spurs” that
were “[o]therwise unimpressive.” (R. 25, 540.)
The ALJ additionally relied on plaintiff’s limited work history to discredit her
testimony: “While not fully dispositive, the claimant’s poor work history, where she failed
to earn more than $1,500 a year in her lifetime, does not show the claimant has an
appreciable work ethic.” (R. 24.) An ALJ may rely on a plaintiff’s poor work history to
discredit testimony that she cannot engage in gainful activity, and the ALJ appropriately
relied on such evidence in this case to further discredit plaintiff’s testimony that pain
prevents her from working. See Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001)
(noting that “[a] lack of work history may indicate a lack of motivation to work rather than
a lack of ability”) (citing Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993)).
The court concludes that the ALJ relied on substantial evidence to discredit plaintiff’s
allegations about the limiting effects of her impairments, and thus, the ALJ did not err in
choosing not to further develop the record by obtaining additional medical source opinions.

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2. Effects of Plaintiff’s Depression and Obesity
Plaintiff argues that the ALJ erred in assessing her RFC by not considering her nonsevere impairments of depression and obesity. The court finds that while the ALJ adequately
considered plaintiff’s depression in assessing her RFC, plaintiff is correct that the ALJ failed
to appropriately evaluate plaintiff’s obesity.
An ALJ must consider all of a claimant’s medically determinable impairments of
which the ALJ is aware, including non-severe medically determinable impairments, when
assessing the claimant’s RFC. 20 C.F.R. § 416.945(a)(2). Contrary to plaintiff’s assertion,
the ALJ did consider plaintiff’s depression in assessing her RFC. The ALJ agreed with State
reviewing physician Dr. Robert Estock’s report, in which he opined that (1) plaintiff’s mental
impairment is not severe, (2) the impairment places only a mild restriction on plaintiff’s daily
activities, social functioning, and ability to maintain concentration, persistence, and pace,
and (3) plaintiff has experienced no episodes of decompensation lasting for an extended
duration. (R. 24, 494, 504.) Dr. Estock noted that plaintiff was seeking neither mental health
treatment nor a change in her medication dosage, (R. 506), and found that plaintiff’s
depression was “not functionally limiting and [was] fairly controlled with her medication.”
(Id.) The ALJ cited this evidence along with “uncertainty regarding the claimant’s
compliance with medication” in finding that plaintiff’s depression did not affect plaintiff’s
ability to engage in gainful activity. (R. 24.) Therefore, the court finds that the ALJ properly
considered plaintiff’s non-severe impairment of depression in assessing plaintiff’s RFC and
relied on substantial evidence in finding that this impairment was not functionally limiting.
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Plaintiff next contends that the ALJ failed to consider her non-severe impairment of
obesity in assessing her RFC. Social Security Ruling 02-1p guides courts in evaluating
disability claims brought by a claimant with obesity. The Ruling mandates that an ALJ
consider a claimant’s obesity at every step of the sequential evaluation process:
[T]he combined effects of obesity with other impairments can be greater than
the effects of each of the impairments considered separately. [The
Regulations] also instruct adjudicators to consider the effects of obesity not
only under the listings but also when assessing a claim at other steps of the
sequential evaluation process, including when assessing an individual's
residual functional capacity.
Titles II and XVI: Evaluation of Obesity, SSR 02-1p (S.S.A. Sept. 12, 2002).
At step two in the sequential evaluation process, the ALJ found that “the evidentiary
record does not indicate the claimant’s [obesity] causes more than minimal limitations to her
ability to perform work activity.” (R. 21.) In assessing plaintiff’s RFC, the ALJ did not
mention plaintiff’s obesity but stated that after reviewing the evidence, he found “few
changes in the claimant’s condition since her previous disability claim that was rejected by
Administrative Law Judge Kenneth Wilson” in 2010. (R. 24.) In the 2010 opinion, the ALJ
evaluated plaintiff’s obesity pursuant to SSR 02-1p and found that it did not significantly
affect her “ability to perform routine movements and necessary physical activities within the
light level of work environment.” (R. 87.) While the ALJ concluded that obesity aggravated
plaintiff’s back, the ALJ relied on factors such as plaintiff’s ability to walk without an
assistive device, her ability to squat and arise, and the fact that plaintiff did not testify to any

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problems caused by obesity to find that obesity did not significantly limit plaintiff’s physical
ability to perform light exertional work. (Id.)
The ALJ’s statement that he found few changes since 2010 does not show that the
ALJ considered plaintiff’s obesity. While Dr. Aarons noted in the January 2011 CE report
that plaintiff walked into the examination room without assistance, (R. 489), plaintiff
testified at the ALJ hearing on June 12, 2012 that she had been using a walker prescribed by
her doctor to assist with balance for the past two and a half months. (R. 46.) Additionally,
Dr. Aarons’s notes do not show that plaintiff had the same ability during the CE that she had
during the exam mentioned in the 2010 ALJ opinion. For example, Dr. Aarons did not test
plaintiff’s ability to squat and arise, and his notes state that she is a “morbidly obese” woman
weighing twice as much as she should, that she needed assistance getting on and off the
examination table, and that she put her shoes on independently only because they were slipon shoes. (R. 489.) Dr. Heilpurn also diagnosed plaintiff with “morbid obesity.” (R. 508.)
Additionally, unlike in the 2010 ALJ hearing, plaintiff testified in the June 2012 hearing
about problems associated with her weight. She testified that she regularly uses a “traction
machine” that relieves pain by lifting weight off her body. (R. 50.)
The ALJ was required to address the possible effects obesity had, if any, on plaintiff’s
RFC even if a consideration of plaintiff’s obesity would not have affected the ALJ’s ultimate
RFC finding. Furthermore, the court cannot find that the ALJ’s error was harmless. In a
similar case arising from an ALJ’s failure to address the plaintiff’s obesity, the District Court
for the Middle District of Florida explained:
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[T]he court is not authorized to evaluate the plaintiff’s obesity to determine
whether it is a severe or nonsevere impairment and, if it is a severe
impairment, to decide what the functional limitations from that impairment
are. That responsibility is assigned to the law judge. Consequently, the
harmless error doctrine cannot be employed since it would require the court
to undertake a task that has been committed to the law judge.
Parker v. Astrue, No. 8:09-CV-1177-T-TGW, 2010 WL 1836818, at *3 (M.D. Fla. May 3,
2010).
The court finds that the ALJ did not consider plaintiff’s non-severe impairment of
obesity in assessing her RFC, as required by 20 C.F.R. § 416.945(a)(2) and SSR 02-1p, and
as the Commissioner’s brief does not address this issue, the Commissioner has provided no
reason for the court to find otherwise. Therefore, this case will be remanded to the
Commissioner for an evaluation of plaintiff’s obesity in the assessment of plaintiff’s residual
functional capacity.

IV. CONCLUSION
Based on the reasons set forth above, the decision of the ALJ, as adopted by the
Commissioner, denying plaintiff’s claim for SSI is due to be affirmed in part and
remanded for an evaluation of plaintiff’s obesity in the assessment of plaintiff’s residual
functional capacity. An Order affirming in part and remanding the decision of the
Commissioner will be entered contemporaneously with this Memorandum Opinion.
Regarding plaintiff’s request to remove a document containing a representative’s

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identification information, (see Doc. 9 at 11), the record in this case is not available for
public disclosure, so no further action is required to protect the information.
DONE this 16th day of January, 2015.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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