George v. Astrue

Filing 29

Order on Motion for Miscellaneous Relief, Order on Motion to Remand to Agency

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

KRISTYN M. GEORGE,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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3:06-cv-00046 JWS
ORDER AND OPINION
[Re: Motions at Docket 20 and 23]

I. MOTIONS PRESENTED
At docket 20, plaintiff filed a brief on the merits, requesting remand for payment
of benefits or alternatively remand for additional proceedings. Defendant Commissioner
of Social Security filed his own motion to remand at docket 23. Both motions have been
fully briefed. Oral argument was not requested and it would not assist the court.
II. BACKGROUND
Plaintiff George filed a complaint in this court requesting review of the decision by
the Commissioner of Social Security to deny plaintiff’s claim for award of Supplemental
Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 1383.1 This
court has jurisdiction under 42 U.S.C. § 405(g). Kristyn George is a forty-two-year-old

1

Doc. at 1.

divorced mother of three. She is a high school graduate.2 She was in special education
classes from third grade until her graduation from high school.3 She stated in her
hearing that she reads at about a third grade reading level.4 George filed for
Supplemental Security Income payments in October 2002, claiming benefits beginning
April 1, 2002.5 George’s application was denied on April 23, 2003.6 George requested
an administrative hearing, which was scheduled for September 2, 2004, in Portland,
Oregon, although the hearing transcript dates the hearing as February 20, 2006.7 The
ALJ found that George was not disabled in a written opinion dated March 23, 2005,
indicating to this court that the hearing was held in September 2004 as scheduled.8
George claimed that she is disabled due to a back injury and mental illness.9
She has worked in the past as a janitor, housecleaner, inn/motel housekeeping staff,
self-employed housecleaner, dishwasher, and alcove cleaner at the Alaska state fair.10
She also worked at a convenience store, courier service, liquor stores, video store,
pizza parlor, as a vegetable picker, and as night staff in a home for mentally
handicapped schizophrenic adults within the last 15 years.11
At the hearing, George testified that she could not go back to work because she
suffers from severe degenerative disk syndrome (complicated by her weight) as well as

2

A.R. at 12, 411.

3

A.R. at 411.

4

A.R. at 411.

5

A.R. at 12, 385.

6

A.R. at 22-26.

7

A.R. at 28, 35, 380.

8

A.R. at 12-21.

9

A.R. at 12, 22-23.

10

A.R. at 387-91.

11

A.R. at 387-95, A.R. at 96-99.

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from panic attacks.12 George testified that her treating physician, Dr. Martin, told her
that she should not even be doing housework due to her condition.13 George stated that
she also has problems with her right shoulder that cause it to “pop out” and creates
numbness in the arm.14 She testified that she also suffers from carpal tunnel syndrome
in both hands, sometimes so severe she cannot even hold a plate in her hands.15 She
has over-hyperextension in both her knees and has had three surgeries on her left
knee.16 George also testified that doctors have told her to have surgery on her right
knee.17 She has trouble sleeping due to her back problems.18 She testified that
sometimes “it’s really hard to get up and just even get up to go to the bathroom.”19 Her
back problems also create numbness in her arms and legs which stops her from doing
household chores.20 George’s panic attacks sometimes occur “two to three times a
week.”21 In addition to panic attacks, George states she suffers from depression which
also affects her ability to work.22 She testified that she suffered from asthma which is

12

A.R. at 395-96.

13

A.R. at 397.

14

A.R. at 399-400.

15

A.R. at 401.

16

A.R. at 404.

17

A.R. at 404.

18

A.R. at 408.

19

A.R. at 395.

20

A.R. at 407-08.

21

A.R. at 396.

22

A.R. at 409.

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affected by cleaning products, glacial dust, and poor air quality.23 George’s panic
attacks sometimes trigger an asthma attack.24
III. STANDARD OF REVIEW
For purposes of the Social Security Act, a “disability” is defined as the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected . . . to last for a continuous period
of not less than 12 months.”25 A person is not disabled if he or she is capable of
engaging “in any . . . kind of substantial gainful work which exists in the national
economy.”26
“Disability claims are evaluated using a five-step sequential analysis.”27 At step
one, the ALJ determines whether the claimant is currently working and the work is
substantial gainful activity. If so, the claimant is not disabled.28 At step two, the ALJ
assesses whether the claimant has a medically severe impairment or combination of
impairments; that is, whether the impairment or combination of impairments significantly
limits basic work activities. If not, the claimant is not disabled.29 At step three, the ALJ
considers whether the claimant’s impairment or combination of impairments meets or
equals an impairment listed in an appendix to the regulations.30 If so, the claimant is
considered disabled regardless of age, education, or work experience.31 At step four,
the ALJ assesses the claimant’s residual functional capacity (“RFC”) and whether the
23

A.R. at 406.

24

A.R. at 406.

25

42 U.S.C. § 423(d)(1)(A).

26

42 U.S.C. § 423(d)(2).

27

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); 20 C.F.R. § 404-1520.

28

20 C.F.R. § 404.1520.

29

20 C.F.R. § 404.1520.

30

20 C.F.R. pt. 404, subpt. P, App. 1, 20 C.F.R. § 404.1520.

31

20 C.F.R. § 404 .1520.

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claimant is capable of performing work he or she has performed in the past fifteen
years. If so, the claimant is not disabled.32 At step five, the ALJ determines whether the
claimant is capable of performing any other work in the national economy. If so, the
claimant is not disabled.33 “The claimant carries the initial burden of proving a disability
in steps one through four of the analysis.”34 If the claimant establishes the inability to
perform past relevant work, the burden shifts to the ALJ to “identify other jobs that the
claimant is capable of performing.”35
Upon denial of disability benefits, a claimant may request the SSA Appeals
Council to review the ALJ’s decision.36 Where, as here, the Appeals Council denies a
request for review, the decision of the ALJ represents the final decision of the
Commissioner.37 The claimant may then seek judicial review of the ALJ’s decision by
the district court.38 On de novo review, the district court may enter, upon the pleadings
and a transcript of the record, a judgment affirming, modifying, or reversing the ALJ’s
decision, with or without remanding the case for a rehearing.39 The ALJ’s decision must
be upheld if it is supported by substantial evidence and the ALJ applied the correct legal
standards.40 “Substantial evidence is ‘more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as

32

20 C.F.R. § 404.1520.

33

20 C.F.R. § 404.1520.

34

Burch, 400 F.3d at 679.

35

Terry v. Sullivan, 903 F.2d 1273, 1275 (1990).

36

20 C.F.R. § 404.967.

37

Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193 n.1 (9th Cir.
2004) (citing 20 C.F.R. § 404.981).
38

42 U.S.C. § 405(g).

39

Id.

40

Howard v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 1997)).

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adequate to support a conclusion.’”41 When evidence supports either confirming or
reversing the ALJ’s decision, the reviewing court may not substitute its judgment for that
of the ALJ.42
IV. THE ADMINISTRATIVE LAW JUDGE’S OPINION
George maintains that Administrative Law Judge Linda Haack’s (“ALJ”)
determination that she was not disabled was not supported by substantial evidence and
contained errors of law.43 The ALJ found that George satisfied the first two steps of the
five-step test to determine disability.44 The ALJ found that George had “major
depression, recurrent, moderate, with a possible history of psychotic features, post
traumatic stress disorder (PTSD), lumbar disc disease and right shoulder pain.”45 The
ALJ found these impairments “severe” under the regulations but not enough so to
medically meet or equal “either singly or in combination” any of the impairments of
Appendix 1, Subpart P, Regulations No. 4.46 The ALJ noted that she particularly looked
to the listings in sections 1.00, 11.00, 12.04, and 12.06 of the Listing of Impairments.47
The ALJ did not mention obesity as a consideration in her opinion.48 The ALJ found that
George had moderate limitations in social functioning, concentration, persistence or
pace, however no repeated episodes of decompensation.49
The ALJ found that George does not retain the residual functional capacity to
perform any of her past relevant work, based on a vocational expert’s testimony, but
41

Id. (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).

42

Batson, 359 F.3d at 1196.

43

A.R. at 21.

44

A.R. at 20.

45

A.R. at 13.

46

A.R. at 13.

47

A.R. at 13, 14.

48

A.R. at 13, Doc. 28 at 5-6.

49

A.R. at 14.

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found at Step 5 that George could perform other jobs existing in significant numbers in
the national economy.50 The ALJ found that George “can perform a full range of light
work activity, with consideration for her low tolerance for stress and her moderate
limitations in daily activities, in social functioning and in concentration, persistence, or
pace.”51 The ALJ noted that the vocational expert testified that according to a
hypothetical posed to the expert, George is capable of work as a polisher of eyeglass
frames (sedentary, unskilled) or as an assembler of small components (sedentary,
light).52 The ALJ concluded that George was “not disabled.”53
The ALJ noted that she found George’s testimony less than fully credible
because of some noncompliance with medications and “few objective findings to
support the degree of pain” alleged.54 The ALJ also noted that Dr. Martin, a treating
physician, in limiting George to four hours a day of work activity did not “supply any
objective medical findings which would support such significant limitations for 12
consecutive months or longer.”55 The judge questioned whether these limitations were
temporary due to recovery of George’s tailbone fracture and thus decided not to give Dr.
Martin’s opinion “great weight.”56
IV. DISCUSSION
The first issue raised by the plaintiff is whether the credibility and testimony of
George and her treating physician were improperly discounted. The second issue is
whether obesity was improperly discounted in the ALJ opinion. Next, George asks the
court to hold that George satisfies or equals the criteria for disability as a matter of law,

50

A.R. at 20.

51

A.R. at 20.

52

A.R. at 19.

53

A.R. at 20.

54

A.R. at 18.

55

A.R. at 18.

56

A.R. at 18.

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based on Listing 20 C.F.R. Pt. 404, subpt. P, Appendix 1 Listings 1.02 and 1.04, Major
dysfunction of a joint(s) and Disorders of the spine.
The defendant agrees with the plaintiff that obesity was not discussed as it
should have been in steps 2-5 of the ALJ opinion, and argues that the case must
therefore be remanded to the ALJ for further development of the record.57 Plaintiff
George replies that remand is not needed because the record “ is ample to support a
finding of disability at step three.”58
As a preliminary matter, George asserts that under Local Rule 7.1(d), she is
entitled to prevail, because the Commissioner failed to address the merits of her
argument for disability as a matter of law at Step 3 when he responded by merely
stating that the Step 3 findings were “in dispute” and that George’s claims were
“premature and possibly erroneous.”59 What the Commissioner is really saying is that at
this stage it cannot be determined if plaintiff’s contentions are wrong, because a more
complete record is needed.60 On the record here, the court finds that in taking such a
position, the Commissioner has done all that was necessary to comply with the local
rule.
A. Credit of Treating Physician’s Opinion
George asserts that there was not an adequate explanation for the disregard of
Dr. Martin’s opinion about George’s functional limitations. A treating physician’s opinion
is “entitled to special weight.”61 “To reject an uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing reasons that are supported
by substantial evidence.”62 If a treating doctor’s opinion is contradicted by another
57

Doc. 28 at 5-6.

58

Doc. 27 at 3.

59

Doc. 25 at 2 (citing Doc. 24 at 3, 6).

60

Doc. 28 at 5-6.

61

Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988).

62

Bayliss v. Barhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81 F.3d
821, 830-31 (9th Cir. 1995).

-8-

doctor’s opinion, then an ALJ may reject the treating doctor’s opinion only by “providing
specific and legitimate reasons that are supported by substantial evidence.”63 The ALJ
“is not bound by the uncontroverted opinions of the claimant’s physicians on the
ultimate issue of disability, but he cannot reject them without presenting clear and
convincing reasons for doing so.”64 “[R]easons for rejecting a treating doctor’s credible
opinion on disability are comparable to those required for rejecting a treating doctor’s
medical opinion.”65
The ALJ’s reason for rejecting Dr. Martin’s opinion is somewhat puzzling. The
ALJ acknowledge that the treating physician’s opinion was not given “great weight.”66
The ALJ found that the treating physician, “did not supply any objective medical
findings” to support limiting George to four hours of work a day.67 There are several
places in the record where this limitation is stated. The ALJ might be addressing either
Dr. Martin’s 2002 Medical Examination and Capacity form for the State of Alaska
completed on May 20, 2002, or his medical notes of the same day.68 The ALJ also
could be referencing testimony by George herself that “I was told that working four
hours a day is pushing it” and that her doctor said “I’m writing four hours down
reluctantly” because he “fe[lt] that [she] should be doing less” and that she shouldn’t
even be doing housework.69 George stated that Dr. Martin tells her that “all the time
when [she] go[es to] see him.”70

63

Id.

64

Reddik v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotations omitted).

65

Id.

66

A.R. at 18.

67

A.R. at 18.

68

A.R. at 123, 124.

69

A.R. at 397.

70

A.R. at 397.

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The medical form has four hours a day circled in answer to the question of
whether the patient can work part time.71 Similarly, medical notes of the same day state
that the patient’s back pains are exacerbated by her falls “a few months ago” and that
she is “limited to 4 hrs work day per life quest.”72 The ALJ questioned this four-hour-aday assessment by noting that perhaps Dr. Martin’s assessment was based on a
temporary limitation “during the recovery of [George’s] tailbone fracture.”73 However,
while the medical notes of May 20, 2002, do reference “falls a few months ago,” the
medical capacity form and notes make no mention of a fractured tailbone.74 A tailbone
fracture did occur after the 2002 assessment and before Dr. Martin’s 2004 assessment,
in December 2003 according to Dr. Martin’s medical records.75 This fracture occurred
about a month before Dr. Martin again filled out a Medical Examination & Capacity form
on January 19, 2004, where he stated that George could not work at all.76 However, the
ALJ offers no reason why on either capacity form Dr. Martin would have considered the
tailbone fracture in assessing whether George had a medical condition that would affect
her ability to work for “More than 12 Months” and “12" months, respectively.77 Neither
form appears to mention a tailbone fracture, and there is no reason to think that the
doctor would consider a temporary limitation in stating an opinion on George’s long term
ability to work. The fact that Dr. Martin tells George “all the time” that she should be
doing less than four hours of work a day supports the idea that Dr. Martin was not
considering temporary limitations in that assessment.

71

A.R. at 18; A.R. at 124.

72

A.R. at 123.

73

A.R. at 18.

74

A.R. at 123, 124.

75

A.R. at 360 (stating “fx tailbone the week of 12-17-03").

76

A.R. at 363; See also A.R. at 360 (stating “fx tailbone the week of 12-17-03").

77

A.R. at 124, 363.

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The ALJ offered no “specific and legitimate reasons”78 supported by substantial
evidence for rejecting Dr. Martin’s opinion. Claiming that Dr. Martin perhaps considered
a temporary injury in his long-term disability assessment might be specific but is not a
legitimate reason to reject Dr. Martin’s opinion, and is not supported by substantial
evidence.
The ALJ also states that Dr. Martin did not “supply any objective medical findings
which would support such significant limitations” as a 4 hour work day for 12 months or
longer.79 However, Dr. Martin’s records appears replete with documentation of
George’s condition that would explain Dr. Martin’s expression of limitations. In April
2002, Dr. Martin noted that George had “porbable (sic) deg disc and jt disease.”80 In
October 2002, Dr. Martin noted that George’s MRI showed disc extrusion on L4-5 and a
radial tear at L5-S1, and treated George with an epidural steroid injection for a “ruptured
L4-5 disc”.81 In November 2002, Dr. Martin noted that George had “chronic pain
syndrome, depression, and insomnia.82 In 2004, Dr. Martin notes degenerative disk
disease, degenerative joint disease, obesity, and lumbago as his diagnosis of George
on the State capacity form.83 A 2004 MRI similarly indicates “moderate degenerative
change.”84 There is not substantial evidence to support the ALJ’s opinion that there are
not any objective medical findings to support Dr. Martin’s 2002 limitation of four hours of
work a day on George. Dr. Martin’s opinion should therefore be fully credited.

78

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

79

A.R. at 18.

80

A.R. at 126.

81

A.R. at 116.

82

A.R. at 113.

83

A.R. at 363.

84

A.R. at 226.

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B. George’s Credibility
The ALJ also held that the claimant was less than fully credible, stating that the
medical documents show “some noncompliance” with medication and that there were
“few objective findings to support the degree of pain she alleges.”85 She said that “the
objective medical evidence in the record does not support the claimant’s allegations of
debilitating pain.”86 If a claimant produces, “objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other symptoms
alleged,” then an ALJ may reject testimony of the claimant on severity of symptoms
“only if he makes specific findings stating clear and convincing reasons for doing so.”87
The “fact that a claimant’s testimony is not fully corroborated by the objective medical
findings, in and of itself, is not a clear and convincing reason for rejecting it.”88 “The ALJ
must state specifically which symptom testimony is not credible and what facts in the
record lead to that conclusion.”89 In determining credibility, the ALJ may consider
“unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment.”90
Here, George has presented objective medical evidence that she suffers from an
underlying impairment that reasonably could be expected to produce the pain and
symptoms she alleges. George’s medical records contain MRIs, the most recent of
which shows “moderate degenerative change” at the L5-S1 disc.91 Dr. Martin first notes

85

A.R. at 18.

86

A.R. at 17.

87

Smolen v. Chater, 80 F.3d 1273, 1281-82, 1283-84 (9th Cir. 1996) (internal quotations

omitted).
88

Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001).

89

Smolen, 80 F.3d at 1284 (internal quotations omitted).

90

Id.

91

A.R. at 226. Earlier MRIs and test results show “disc extrusion” and “very
minimal lumbar dextroscoliosis.” A.R. at 128, 132.

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probable degenerative disc and joint disease on April 23, 2002.92 On October 29, 2002,
he notes that George had a ruptured L4-5 disc.93 Dr. Martin and George’s physician,
Dr. Kirkpatrick, appeared to coordinate in prescribing extensive pain medications for
George and nothing in the record indicates either doctor doubts George’s pain.94
Dr. Berselli examined George on April 22, 2004, and found that “[i]n all probability,
[George’s] pain generator in the lumbar spine area is either the L4-5 and/or the L5-S1
degenerated disks.95 Dr. Berselli notes that “extensive physical therapy” has not
helped, and recommended weight loss and possible surgery to relieve her pain.96
Dr. Martin diagnoses degenerative disk disease, degenerative joint disease, obesity,
and lumbago on his 2004 medical capacity form.97 A diagnosis of mild AC joint arthritis
was made regarding George’s right shoulder,98 and possible carpel tunnel syndrome
was noted by Dr. Kirkpatrick.99 George has shown sufficient objective medical evidence
that she suffers from underlying impairments that reasonably could be expected to
produce the pain and symptoms she alleges.
The ALJ notes George’s noncompliance with medications as another reason to
find her less than fully credible. “Unexplained or inadequately explained failure to seek
treatment or to follow a prescribed course of treatment” can be a factor in determining
whether a claimant’s testimony is credible regarding the severity of her symptoms.100
Here, however, the ALJ does not consider that there were explanations for George’s
92

A.R. at 126.

93

A.R. at 116.

94

A.R. 120-123, 116, 136.

95

A.R. at 230.

96

A.R. at 230.

97

A.R. at 363.

98

A.R. at 131.

99

A.R. at 139.

100

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (internal quotations omitted).

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occasional noncompliance. The instances of noncompliance with medications for
psychological problems was usually explained by George to medical staff. For instance,
George stated in January 2003 in therapy that she had stopped her medications
because of problems with nausea and feeling ill.101 Her doctor noted that she told him
she stopped her Zoloft and Remeron medications because they caused “too much
sedation,” and she had been gaining some weight.102 Another time, George informed
Dr. Stallman she was unable to afford her medication.103 She occasionally forgot to take
medication as well or once stopped one medication due to sedation but continued
another, indicating a willingness to stay on medication.104 Dr. Stallman prescribed a
different medication after George stated she had stopped Zoloft and Remeron because
of too much sedation and weight gain.105 The ALJ cites to the May 1, 2003 evaluation106
that stated that George had stopped her Zoloft and not yet started her Lexapro, but on
May 29 the therapist noted that “I would recommend we go ahead and allow her to
continue on Lexarpro” as she might improve further “since she has been on it a
relatively short period of time.”107 Thus, it is clear that George had started her Lexapro
by the end of that month. George’s occasional noncompliance was not “unexplained or
inadequately explained,” and the ALJ’s reasons for rejecting George’s credibility
regarding her pain testimony were not clear and convincing reasons.
George’s testimony regarding her symptoms and pain should have been fully
credited by the ALJ. Her testimony should have been considered by the ALJ, and will
need to be considered on remand.

101

A.R. at 153.

102

A.R. at 152.

103

A.R. at 182.

104

A.R. at 191, 193.

105

A.R. at 152.

106

A.R. at 14-15.

107

A.R. 267.

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C. Obesity
Both defendant and George agree that the ALJ did not properly consider
George’s obesity in the residual functional capacity analysis at steps 4 and 5 or at the
impairment analysis of step 2.108 The record includes ample evidence about George’s
obesity and the exacerbating effects it has on her back impairment. Dr. Berselli’s letter
of April 22, 2004, states that George weighed 262 pounds and was five feet four inches,
and noted that she is 120 pounds over her ideal weight.109 Dr. Berselli indicates that
losing weight might improve George’s back pain.110 Obesity is mentioned at the
hearing111 and in the ALJ’s opinion.112 It is mentioned by Dr. Martin in his medical
examination and capacity form as a diagnosis.113 Dr. Martin also makes note in his
records of the need to “deal with weight loss and exercise.”114 Obesity was still not
considered by the ALJ in any analysis of George’s impairments at step 3 or her residual
functional capacity. At the hearing, obesity was not considered in the RFC hypothetical
given to the vocational expert.115
Obesity is particularly important to musculoskeletal system impairments. Section
Q of Part 404, Subpt. P, App. 1, Section 1 states that:
Obesity is a medically determinable impairment that is often associated with
disturbance of the musculoskeletal system, and disturbance of this system can
be a major cause of disability in individuals with obesity. The combined effects of
obesity with musculoskeletal impairments can be greater than the effects of each
108

Doc. 28 at 5, Doc. 20 at 29. The ALJ did discuss obesity at the hearing, and mentions
it in her opinion (A.R. 17, 395).
109

A.R. 229-30.

110

A.R. at 230.

111

A.R. at 396.

112

A.R. at 17 (noting that George’s doctor has suggested that she lose weight and that
she has done so, although she is “shocked” at contemplating a gastric bypass).
113

A.R. at 363.

114

A.R. at 366.

115

A.R. at 415-17.

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of the impairments considered separately. Therefore, when determining whether
an individual with obesity has a listing-level impairment or combination of
impairments, and when assessing a claim at other steps of the sequential
evaluation process, including when assessing an individual’s residual functional
capacity, adjudicators must consider any additional and cumulative effects of
obesity.116
The Ninth Circuit has stated that because “obesity is not a separately listed impairment,
a claimant will be deemed to meet the requirements if there is an impairment that, in
combination with obesity, meets the requirements of a listing.”117 Obesity should also
be considered in the residual functional capacity assessment.118 In Celaya v. Halter, the
Ninth Circuit found that where the report of symptoms “implicitly” raised obesity as a
disabling factor, where it was clear from the record that obesity was at least close to
listing criterion of the time, and where the claimant was pro se, the ALJ’s observation of
claimant and the record “should have alerted him to the need to develop the record in
respect to [claimant’s] obesity.”119 The Ninth Circuit later pointed out that while the
Celaya court noted that even if a claimant is represented, the ALJ still has some burden
to develop the record, “this Court did not specify the parameters of that burden.”120
Here, the ALJ did not consider obesity at any of the steps of the five-step
analysis, although there is ample evidence in the record of George’s obesity and how it
exacerbates her other impairments. There is also clear evidence that the ALJ was
aware of George’s obesity. The ALJ herself questioned George at the hearing about

116

20 C.F.R. Pt. 404, Subpt. P, App. 1, Sec. 1.00 Q.

117

Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (internal quotations
omitted);Social Security Ruling SSR 02-1p, Titles II and XVI: Evaluation of Obesity, Sept. 12,
2002, 67 F.R. 57859, 57862.
118

Social Security Ruling SSR 02-1p, Titles II and XVI: Evaluation of Obesity, Sept. 12,
2002, 67 F.R. 57859, 57862-63.
119

Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003).

120

Burch, 400 F.3d at 682.

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her obesity121 and even noted it in her summary of evidence in her opinion.122 Although
George might not have raised obesity in her Disability Report,123 her obesity and its
related effects on her other impairments is clearly documented. Its serious effects on
her other impairments were clearly documented to the ALJ from the record and
testimony, and should have been considered by the ALJ in a determination of whether
George’s combination of impairments met or equal a listed impairment and in the
residual functional capacity assessment.124
D. Remand
George argues that remand for further development of the record is unnecessary
because she already satisfies the criteria for disability based on Listing 1.02 and 1.04 of
20 C.F.R. Pt. 404, subpt. P, Appendix 1. After carefully considering the record, the
court disagrees. What is needed in this case is a thorough review by the ALJ after
taking into account George’s testimony, properly weighing the evidence from Dr. Martin,
and considering the significance of George’s obesity. Until that is done, the court is not
confident that a particular outcome at Step 3 can be correctly ascertained by a
reviewing court. Of course, if after properly considering all of the evidence, the ALJ still
finds that George does not have the equivalent of a listed impairment at Step 3, the ALJ
must go on and complete Steps 4 and 5. In that regard, it must be added that any
hypothetical which is posed to a vocational expert in proceedings on remand must
reflect all of George’s impairments, including her obesity and any limitations properly
supported by the evidence from Dr. Martin.

121

A.R. at 396.

122

A.R. at 16, 17.

123

A.R. at 63.

124

Social Security Ruling SSR 02-1p, Titles II and XVI: Evaluation of Obesity, Sept. 12,
2002, 67 F.R. 57859, 57860, 57867.

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VI. CONCLUSION
For the reasons above, the motion at docket 20 is GRANTED in part and
DENIED in part, and the motion at docket 23 is GRANTED as follows: the
Commissioner’s decision is REVERSED AND REMANDED for further proceedings
consistent with this opinion.
DATED at Anchorage, Alaska, this 2nd day of March 2007.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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