Burnett v. Social Security Administration
ORDER AFFIRMING THE COMMISSIONER. The ALJ made no legal error and for these reasons, the Court denies Burnett's request for relief and affirms the Commissioner's decision. Signed by Magistrate Judge Jerome T. Kearney on 11/6/2014. (jak)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Jennie L. Burnett
CASE NO. 3:14CV00012 JTK
Carolyn W. Colvin, Acting Commissioner,
Social Security Administration
ORDER AFFIRMING THE COMMISSIONER
Jennie L. Burnett seeks judicial review of the denial of her application for disability
insurance benefits (DIB) and supplemental security income (SSI). Burnett last worked in
December of 2009 as a cashier in a convenience store.1 Burnett applied for DIB and SSI in
February 2011, with an alleged onset date of November 1, 2005.2 Burnett’s date last insured is
June 30, 2006.3 Burnett bases disability on a bulging disc with spinal stenosis, obesity, anxiety,
depression, anger management, knee pain and ankle pain.4
The Commissioner’s decision. The Commissioner’s ALJ determined that Burnett did
not engage in substantial gainful activity during the period from the alleged onset date to the date
last insured.5 Burnett has severe impairments - disorder of the back, obesity and mood disorder
with symptoms of anxiety and depression.6 None of Burnett’s severe impairments meet the
Listings, and Burnett can perform sedentary work except she can only lift/carry ten pounds
SSA record at p. 185.
Id. at pp. 146 & 159.
Id. at p. 172.
Id. at p. 184.
Id. at p. 13.
occasionally; sit six hours out of eight hours; stand/walk two hours out of eight hours;
occasionally stoop, crouch, crawl, kneel and balance; and maintains the ability to perform simple
routine tasks where supervision is simple, direct and concrete.7 The ALJ held that Burnett cannot
perform any past relevant work,8 but can perform the positions of checker and order clerk,
positions identified by the vocational expert (VE) as available in the state, regional and national
economies.9 Burnett’s application was denied.10
After the Commissioner’s Appeals Council denied a request for review, the ALJ’s
decision became a final decision for judicial review.11 Burnett filed this case to challenge the
decision. In reviewing the decision, the Court must determine whether substantial evidence
supports the decision and whether the ALJ made a legal error.12
Burnett’s allegations. Burnett maintains that the ALJ’s denial of disability benefits is
not supported by substantial evidence because the ALJ erred in the hypothetical presented to the
Id. at pp. 14-15.
Id. at p. 18.
Id. at p. 20.
See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating, “the Social
Security Act precludes general federal subject matter jurisdiction until administrative remedies
have been exhausted” and explaining that the appeal procedure permits claimants to appeal only
See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the Commissioner
conformed with applicable regulations); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We
will uphold the Commissioner’s decision to deny any applicant disability benefits if the decision
is not based on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.”).
VE. This argument is not persuasive. The ALJ’s decision is supported by substantial evidence
and no legal error occurred.
Substantial evidence is “less than a preponderance but . . . enough that a reasonable mind
would find it adequate to support the conclusion.”13 For substantial evidence to exist in this case,
a reasonable mind must accept the evidence as adequate to support the determination that
Burnett is not disabled.14
The hypothetical. Burnett maintains that the ALJ’s denial of her disability benefits is not
supported by substantial evidence because the ALJ failed to include Burnett’s obesity in the
hypothetical presented to the VE.
During the hearing, the ALJ presented the VE with a hypothetical of an individual who
can occasionally lift/carry up to ten pounds; sit six hours in an eight hour day; stand/walk two
hours in an eight hour day; occasionally stoop, crouch, kneel, crawl and balance; and can
perform work which is simple, routine and repetitive in nature and supervision required is
simple, direct and concrete.15 The ALJ did not indicate to the VE that Burnett is obese.
At step five, the burden shifts to the Commissioner to identify jobs that the claimant can
perform considering her RFC, age, education and work experience. The testimony of a VE
identifying jobs available to a claimant will constitute substantial evidence at this step “when it
is based on a hypothetical that accounts for all of the claimant’s proven impairments.”16 The
Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010) (internal quotations and citations
See Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990).
SSA record at pp. 29-30.
Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010).
hypothetical, however, “need not frame the claimant’s impairments in the specific diagnostic
terms used in medical reports, but instead should capture the concrete consequences of those
impairments.”17 The question, then, is whether substantial evidence supports the ALJ’s exclusion
of Burnett’s obesity in the hypothetical. A review of the medical records and hearing testimony
reveals that the ALJ’s decision to exclude obesity from the hypothetical is supported by
The record contains twenty-eight progress notes, dated between June 2006, and March
2012, from Burnett’s treating physician.18 Although Burnett was prescribed medication for her
weight during much of this time, obesity was not the primary concern at these appointments.
Indeed, only two of these progress notes lists obesity under the physician’s assessments.19 Of the
progress notes that list Burnett’s active problems, not one identifies obesity as an active problem.
Additionally, obesity is not listed once in Burnett’s past medical history in the progress notes.
The progress notes further establish that despite Burnett’s weight, she had a full range of motion
in her spine and no limb abnormalities.20 The record also contains records from Burnett’s
hospital visits. Nowhere in the hospital records is obesity listed as an impairment. In the April
2011, Physical Residual Functional Capacity Assessment, the state consultative examiner
determined that although Burnett is morbidly obese, she has the full sedentary RFC.21
Id. (internal quotations and citations omitted).
Id. at pp. 267, 269, 271, 273, 279, 281, 283, 285, 287, 289-290, 292, 294, 296, 298, 321,
325, 327, 352, 376, 378, 380, 382, 384, 387, 391, 393, & 395.
Id. at pp. 285 & 290.
Id. at pp. 273, 323, 325, 327, 352, 376, 378, 380, 384, 387, 393 & 395.
Id. at pp. 310 & 317.
Burnett even acknowledged that her weight does not limit her ability to work. During the
hearing, the ALJ asked Burnett, “Are you attributing work limitation due to your weight? . . .
Are you telling me that - - is your weight impairing you or limiting you from working?”22
Burnett responded, “No. I would say that was my back. . . . I mean, I’ve always been fairly a big
woman and I’ve always worked when I could.”23
To support the argument that the ALJ erred in excluding Burnett’s obesity from the
hypothetical, Burnett cites to Morrison v. Apfel.24 Burnett’s reliance on Morrison is misled. In
Morrison, the Eighth Circuit determined that it was error for the ALJ to exclude mention of the
claimant’s obesity in the hypothetical because (1) the claimant had a history of obesity and (2)
the claimant’s treating physician stated in medical records that the claimant’s obesity was his
“biggest problem.”25 While it appears that Burnett has had issues with her weight for a number of
years, it was never identified as a major medical issue. There is certainly nothing in the record
identifying obesity as Burnett’s “biggest problem.” Morrison is not applicable to the instant case.
A reasonable mind would accept the evidence discussed above as adequate to support the
ALJ’s exclusion of obesity from the hypothetical. Substantial evidence supports the denial of
Conclusion. Substantial evidence supports the ALJ’s decision. The ALJ made no legal
error. For these reasons, the court DENIES Burnett’s request for relief (docket entry # 2) and
Id. at p. 46.
Id. at pp. 46-47.
Morrison v. Apfel, 146 F.3d 625 (8th Cir. 1998).
Id. at 628-629.
AFFIRMS the Commissioner’s decision.
It is so ordered this 6th day of November, 2014.
UNITED STATES MAGISTRATE JUDGE
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