Dwight D Gilbert v. Carolyn W Colvin

Filing 21

MEMORANDUM DECISION AND ORDER by Magistrate Judge Stephen J. Hillman. The decision of the Commissioner is reversed, andthe matter is remanded for further proceedings in accordance with this decision,pursuant to Sentence 4 of 42 U.S.C. § 405(g). (sbu)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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DWIGHT D. GILBERT,

) CV 13-02347-SH
)
Plaintiff,
) MEMORANDUM DECISION
) AND ORDER
v.
)
)
CAROLYN W. COLVIN,
)
Commissioner,
)
Social Security Administration,)
)
Defendant. )
)
This matter is before the Court for review of the decision by the
Commissioner of Social Security denying plaintiff’s application for Disability
Insurance Benefits and Supplemental Security Income. Pursuant to 28 U.S.C. §
636(c), the parties have consented that the case may be handled by the undersigned.
The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter
judgment upon the pleadings and transcript of the record before the Commissioner.
The parties have filed their pleadings. The plaintiff has also filed a Brief in Support

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of the Complaint, and the defendant has filed a Memorandum in Support of Motion

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for Summary Judgment as well as the certified Administrative Record. After

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reviewing the matter, the Court concludes that the decision of the Commissioner

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should be reversed and remanded.

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I. BACKGROUND

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The plaintiff Dwight D. Gilbert filed applications for Disability Insurance

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Benefits and Supplemental Security Income payments under Title II and XVI of the

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Social Security Act. In his applications, Gilbert alleged an inability to work since

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March 7, 2004. (See Administrative Record [“AR”] 132-37). The Commissioner

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initially denied his applications. (See AR 83-94). A hearing on the claim was

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conducted on June 10, 2011. (See AR 35-61). On August 2, 2011, the

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Administrative Law Judge (“ALJ”) issued an unfavorable decision finding that

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Gilbert was not disabled. (See AR 21-34). Upon Gilbert’s request, the Appeals

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Council reviewed the ALJ’s decision. (See AR 4-7). The Appeals Council

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affirmed and adopted the findings and conclusions of the ALJ regarding whether

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Gilbert was disabled. (See AR 4-7).

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Plaintiff makes one challenge to the ALJ’s Decision. He solely alleges the
ALJ erred by failing to properly consider his testimony.

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II. DISCUSSION
Social Security Ruling (“SSR”) 96-7p states in relevant part:

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“The regulations describe a two-step process for evaluating symptoms,

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such as pain, fatigue, shortness of breath, weakness, or nervousness:

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* First, the adjudicator must consider whether there is an underlying

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medically determinable physical or mental impairment(s) … that could

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reasonably be expected to produce the individual's pain or other
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symptoms.

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* Second, once an underlying physical or mental impairment(s) that

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could reasonably be expected to produce the individual's pain or other

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symptoms has been shown, the adjudicator must evaluate the intensity,

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persistence, and limiting effects of the individual's symptoms to

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determine the extent to which the symptoms limit the individual's

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ability to do basic work activities. For this purpose, whenever the

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individual's statements about the intensity, persistence, or functionally

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limiting effects of pain or other symptoms are not substantiated by

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objective medical evidence, the adjudicator must make a finding on the

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credibility of the individual's statements based on a consideration of the

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entire case record. This includes the medical signs and laboratory

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findings, the individual's own statements about the symptoms, any

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statements and other information provided by treating or examining

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physicians or psychologists and other persons about the symptoms and

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how they affect the individual, and any other relevant evidence in the

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case record.”

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The ALJ found that the Plaintiff’s medically determinable impairments

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could reasonably be expected to cause the alleged symptoms, but that plaintiff’s

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statements concerning the intensity, persistence and limiting effects of these

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symptoms were not credible to the extent they were inconsistent with the residual

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functional capacity assessment in the decision. (See AR 28).

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In his credibility analysis, among other evidence, the ALJ relied on evidence

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of purported non-compliance with prescribed treatment as a basis to question the

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(a) degenerative disc disease at C5-C6; (b) facet arthrosis at L5-S1 with retrolisthesis of L4 on

L5; and (c) obesity. (See AR 26).

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Plaintiff’s credibility. For example, the ALJ found that (1) the Plaintiff had been

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instructed to follow a low fat diet and to exercise in order to lose weight; (2)

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however, contrary to doctor’s instructions, Plaintiff had gained more weight without

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reasonable explanation; and (3) the Plaintiff acknowledged that his current diet and

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exercise was not what it needed to be to decrease his weight to a lower level.

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Additionally, the ALJ made the following findings: (1) the Plaintiff was diagnosed

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with chronic low back pain and obesity; (2) he had a body mass index score greater

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than 33; (3) he had gained over 80 pounds in the last few years; and (4)

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notwithstanding the weight gain and the body mass index, there were no opinions

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that reflected any functional limitations due to the condition. (See AR 28).

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Additionally, SSR 02-1p states in relevant part:
“14. How Do We Evaluate Failure To Follow Prescribed Treatment in
Obesity Cases?
Before failure to follow prescribed treatment for obesity can become
an issue in a case, we must first find that the individual is disabled
because of obesity or a combination of obesity and another
impairment(s). Our regulations at 20 CFR 404.1530 and 416.930
provide that, in order to get benefits, an individual must follow
treatment prescribed by his or her physician if the treatment can restore
the ability to work, unless the individual has an acceptable reason for
failing to follow the prescribed treatment. We will rarely use ‘failure
to follow prescribed treatment’ for obesity to deny or cease benefits.
SSR 82-59, ‘Titles II and XVI: Failure To Follow Prescribed
Treatment,’ explains that we will find failure to follow prescribed
treatment only when all of the following conditions exist:
* The individual has an impairment(s) that meets the definition of
disability, including the duration requirement, and
* A treating source has prescribed treatment that is clearly expected to
restore the ability to engage in substantial gainful activity, and
* The evidence shows that the individual has failed to follow
prescribed treatment without a good reason.
…
The treatment must be prescribed by a treating source, as defined in
our regulations at 20 CFR 404.1502 and 416.902, not simply
recommended. A treating source's statement that an individual
“should” lose weight or has “been advised” to get more exercise is not
prescribed treatment.
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When a treating source has prescribed treatment for obesity, the
treatment must clearly be expected to improve the impairment to the
extent that the person will not be disabled. The goals of treatment for
obesity are generally modest, and treatment is often ineffective.
Therefore, we will not find failure to follow prescribed treatment
unless there is clear evidence that treatment would be successful. The
obesity must be expected to improve to the point at which the
individual would not meet our definition of disability, considering not
only the obesity, but any other impairment(s).
Finally, even if we find that a treating source has prescribed treatment
for obesity, that the treatment is clearly expected to restore the ability
to engage in SGA, and that the individual is not following the
prescribed treatment, we must still consider whether the individual has
a good reason for doing so. In making this finding, we will follow the
guidance in our regulations and SSR 82-59, which provide that
acceptable justifications for failing to follow prescribed treatment
include, but are not limited to, the following:
* The specific medical treatment is contrary to the teaching and tenets
of the individual's religion.
* The individual is unable to afford prescribed treatment that he or she
is willing to accept, but for which free community resources are
unavailable.
* The treatment carries a high degree of risk because of the enormity
or unusual nature of the procedure.”

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The record reveals no concrete “prescribed treatment” for the Plaintiff’s

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obesity as required by SSR 02-1p. During each visit with the treating doctor, it

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appears that the Plaintiff was given mere suggestions to exercise more, change diet

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and lose weight, rather than being prescribed a treatment. (See, e.g., AR 191, 198,

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199). Furthermore, the record lacks support of any certainty whether the treatment

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suggestions regarding obesity would be “clearly expected to restore [Plaintiff’s]

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ability to engage in substantial gainful activity.” Lastly, even if it was established

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that there was a prescribed treatment for the Plaintiff’s obesity and the Plaintiff did

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not follow it, the ALJ was required to consider whether the Plaintiff had a good

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reason for doing so. The Plaintiff testified that he was not able to exercise because

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of pain (AR 48-49), and that he tried to follow the doctor’s advice to lose weight by

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walking 30 minutes a day but could not do it without being in really bad pain (AR

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46-47). However, the ALJ made no mention of that testimony.

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The Ninth Circuit has held that where there is evidence of obesity, the ALJ
must determine the effect of the plaintiff’s obesity upon his other impairments,
ability to work, and general health. Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir
2003); See also SSR 02-1p (requiring an ALJ to consider effects of obesity in all
steps of the 5-step sequential evaluation); See also Burch v. Barnhart, 400 F.3d 676,
681-82 (9th Cir. 2005) (distinguishing Celaya and noting that the ALJ must only
consider obesity when the record demonstrates that obesity exacerbates other
impairments).

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The ALJ made no specific findings about the effect the Plaintiff’s obesity had

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upon his ability to work and his general health. In his decision, the ALJ said:

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“Notwithstanding the weight gain and a body mass index score greater than 30,

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there are no opinions that reflect functional limitations due to [obesity].” (See AR

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26).

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However, there is certainly evidence in the record that the Plaintiff’s obesity

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affected other impairments. For example, the ALJ found that the Plaintiff’s “obesity

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exacerbates his low back pain.” The Plaintiff also testified that he tried to follow

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the doctor’s advice to lose weight by walking 30 minutes a day but could not do it

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without being in serious pain. (See AR 46-47). Therefore, the record shows that

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obesity had effects on other impairments of the Plaintiff, however, the ALJ failed

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to make specific findings as to its effects on the Plaintiff’s ability to work and his

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general health.

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In light of SSR 02-1p, SSR 82-59, SSR 96-7p and the Ninth Circuit authority

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in Celaya and Burch, the ALJ must make specific findings regarding the effects of

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obesity on the Plaintiff’s other impairments, his general health and ability to work
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and then use those findings in assessing the Plaintiff’s credibility. The court,

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therefore, reverses the ALJ’s decision and remands with direction to the ALJ to

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make the proper findings regarding obesity consistent with this decision.

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ORDER
For the foregoing reasons, the decision of the Commissioner is reversed, and
the matter is remanded for further proceedings in accordance with this decision,
pursuant to Sentence 4 of 42 U.S.C. § 405(g).

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DATED: February 6, 2014

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_____________________________________
STEPHEN J. HILLMAN
UNITED STATES MAGISTRATE JUDGE

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