Rinke v. Commissioner, Social Security Administration

Filing 22

ORDER: The decision of the Commissioner is REVERSED and REMANDED for further findings. by Judge R. Brooke Jackson on 4/17/18. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 17-cv-00999-RBJ
CHRISTOPHER RINKE,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on review of the Social Security Administration (“SSA”)
Commissioner’s decision denying claimant Christopher Thomas Rinke’s application for
disability insurance benefits under Title II of the Social Security Act. Jurisdiction is proper
under 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses and remands the
Commissioner’s decision.
STANDARD OF REVIEW
This appeal is based upon the administrative record and the parties’ briefs. In reviewing
a final decision by the Commissioner, the District Court examines the record and determines
whether it contains substantial evidence to support the Commissioner’s decision and whether the
Commissioner applied the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th
Cir. 1996). A decision is not based on substantial evidence if it is “overwhelmed by other
evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial
evidence requires “more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it “constitutes mere conclusion.”
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Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Reversal may also be appropriate if
the Commissioner applies an incorrect legal standard or fails to demonstrate that the correct legal
standards have been followed. Winfrey, 92 F.3d at 1019.
BACKGROUND
Mr. Rinke is 56 years old. ECF No. 16 at 3. He completed a bachelor’s degree and
worked as an engineer for many years. Id. (citing R. 95, 247, 299–300, 2193). He lost his job in
2008 after a motorcycle accident, and he last worked in 2011. R. 60, 276. Mr. Rinke alleges that
he became disabled in July 2013 primarily due to back pain, but he also alleges that he suffers
from a variety of other medical issues, including post-concussive syndrome following a head
injury; degenerative disc disease of the cervical, thoracic, and lumbar spine; dysfunction of both
shoulders; obesity; diabetes with peripheral neuropathy and diabetic retinopathy; venous
insufficiency causing peripheral edema; coronary artery disease; gastroesophageal reflux
disorder; memory and concentration problems; affective disorder; and alcoholism. ECF No. 15
at 3; ECF No. 16 at 3.
A. Procedural History.
Mr. Rinke filed a claim for disability insurance benefits on September 20, 2012. R. 86.
Mr. Rinke initially alleged disability beginning May 2007 following a motorcycle accident; he
later amended his alleged onset date of disability to July 1, 2013. ECF No. 16 at 3 n.5; see also
R. 13, 72, 121. His initial claim for disability benefits was denied on February 4, 2013. R. 104.
Mr. Rinke then requested a hearing, which was held before Administrative Law Judge (“ALJ”)
William Musseman on January 28, 2014. R. 47. The ALJ issued a decision denying benefits on
March 13, 2014. R. 16, 110. The Appeals Council remanded this decision by an order dated
September 1, 2015. R. 16, 105. After a second hearing on January 7, 2016, the same ALJ issued

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another unfavorable decision on February 10, 2016. R. 13, 16, 202. The Appeals Council
denied Mr. Rinke’s Request for Review on February 24, 2017, thus rendering the ALJ’s
determination the final decision of the Commissioner for purposes of judicial review. R. 1. Mr.
Rinke filed a timely appeal in this Court. This appeal has been briefed, although Mr. Rinke did
not file a reply. See ECF Nos. 15, 16.
B. The ALJ’s Decision.
The ALJ issued an unfavorable decision after evaluating the evidence according to the
SSA’s standard five-step process. R. 13–36. Because substance abuse was an issue in this case,
the ALJ was required to determine whether substance abuse was a contributing factor material to
the determination of disability. 20 C.F.R. § 404.1535(a). To do so, the ALJ conducted the fivestep process twice: first to determine whether Mr. Rinke would be considered disabled when
taking the substance abuse into account, and second to determine whether Mr. Rinke would still
be considered disabled without taking into account the substance abuse. See Sax v. Colvin, 31 F.
Supp. 3d 1156, 1161 (E.D. Wa. 2014).
i. The ALJ’s Determination Accounting for Substance Abuse.
At the first step in the assessment in which the ALJ accounted for Mr. Rinke’s substance
abuse, the ALJ found that Mr. Rinke had not engaged in substantial gainful activity since his
alleged onset date of July 1, 2013. R. 19. At step two, the ALJ found that Mr. Rinke had the
following severe impairments: degenerative disc disease of the lumbar, thoracic, and cervical
spine; status post closed head injury; affective disorder; dysfunction of the left shoulder;
substance abuse; and obesity. Id. The ALJ found that two of Mr. Rinke’s alleged conditions or
impairments either did not represent medically determinable impairments or were nonsevere,
namely acute displaced fracture of the distal left clavicle and difficulties with vision. Id. At step

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three, the ALJ concluded that Mr. Rinke did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ then found that Mr. Rinke retained the residual functional capacity (“RFC”) to
perform light work except that he cannot perform work at over chest level, cannot climb ladders
or scaffolds, and cannot use foot or leg controls. R. 22. Mr. Rinke was deemed capable of
performing work at the special vocational preparation level of SVP 2 or less, with occasional
interaction with the public. Id. Mr. Rinke “would have multiple absences from the workplace
each month due to alcohol abuse.” Id. The ALJ reached this conclusion based on his assessment
that while Mr. Rinke’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms,” Mr. Rinke’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible.” R. 18.
At step four the ALJ determined that Mr. Rinke is unable to perform any of his past
relevant work. R. 29. At step five the ALJ found that there are no jobs in the national economy
that Mr. Rinke is able to perform. R. 30. Thus, the ALJ concluded that “considering all the
claimant’s medically determinable impairments, including drug and alcohol abuse, the claimant’s
impairments are disabling.” R. 29; see also R. 31.
ii. The ALJ’s Determination Excluding Substance Abuse.
The ALJ then conducted the five-step assessment again, but this time he excluded
substance abuse. R. 31. At step two the ALJ found Mr. Rinke’s remaining impairments would
still be deemed severe “because they impose more than a minimal limitation on the claimant’s
ability to perform basic physical or mental work activities.” Id. (citing Social Security Ruling
(“SSR”) 96-3p). At step three the ALJ found that none of these impairments met a listing. Id.

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The ALJ determined that Mr. Rinke would have the same RFC in the absence of substance use as
he did when accounting for substance abuse, with the exception that he would not be expected to
have attendance issues at work when substance abuse was not a factor. R. 33. At step four the
ALJ found that Mr. Rinke would be unable to perform past relevant work even when substance
abuse was not a factor. R. 35. At step five, however, the ALJ found that there were jobs that
existed in significant numbers in the national economy that Mr. Rinke could perform. Id. As a
result, the ALJ concluded that Mr. Rinke would not be disabled were it not for his substance
abuse. R. 36.
DISCUSSION
Mr. Rinke contends that the ALJ erred in three ways: 1) by failing to provide substantial
evidence supporting his finding that Mr. Rinke would not be disabled independent of his alcohol
use; 2) by failing to discuss Mr. Rinke’s impairments of diabetes, diabetic neuropathy, and
edema; and 3) by failing to consider Mr. Rinke’s obesity as ordered by the Appeals Council upon
remand. ECF No. 15 at 5, 9, 11. I will consider each argument in turn.
A. Alcohol Use.
As noted above, under SSA regulations, if an ALJ finds that a claimant is disabled and
there is medical evidence of alcoholism, the ALJ “must determine whether [the claimant’s] . . .
alcoholism is a contributing factor material to the determination of disability.” 20 C.F.R. §
404.1535(a). The “key factor” the ALJ must evaluate in making this determination is whether
the ALJ would still find the claimant disabled if he stopped using alcohol. Id. at § 404.1535(b).
Thus, an ALJ is to evaluate which of the claimant’s current physical and mental limitations
would remain if the claimant stopped using alcohol, and then the ALJ will determine whether
any or all of these remaining limitations would be disabling. Id. at § 404.1535(b)(2). If the ALJ

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concludes that a claimant’s remaining limitations would not be disabling in the absence of
alcoholism, the ALJ will find that alcoholism is a contributing factor material to the
determination of disability. Id. at § 404.1535(b)(2)(i). If the remaining limitations would be
disabling in the absence of alcoholism, then the claimant will be found disabled independent of
his alcoholism, and his alcoholism will not be deemed a contributing factor material to the
determination of disability. Id. at § 404.1535(b)(2)(ii).
In this case, as noted, the ALJ concluded that Mr. Rinke’s impairments would not be
disabling but for his alcohol abuse, and that his alcohol use was therefore a contributing factor
material to the determination of disability. R. 26, 36. Mr. Rinke argues that in making this
determination, the ALJ “failed to articulate which physical and mental limitations would remain
in the absence of his alcohol use,” and instead merely citied the documents in the record that
support his conclusion. ECF No. 15 at 6. As a result, Mr. Rinke argues that the ALJ’s
conclusion that his alcohol use was a material factor was not based on substantial evidence. Id.
In contrast, Mr. Rinke argues that his remaining impairments are severe even in the absence of
alcohol abuse and cause him significant limitations. Id. In support of his contention, Mr. Rinke
cites evidence in the record that he experienced pain and other problems even when he abstained
from alcohol. Id.
The Commissioner contends that contrary to Mr. Rinke’s argument, the ALJ in fact
clearly indicated that “if Plaintiff stopped drinking, he would have all the same physical and
mental work abilities, except that he would no longer have ‘multiple absences from the
workplace each month due to alcohol abuse,’ and thus would no longer be disabled.” ECF No.
16 at 10. In other words, the ALJ need not have specified which of Mr. Rinke’s physical and
mental limitations would remain in the absence of his alcohol use, since the ALJ made it clear

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that they would all remain, and that the only difference would be Mr. Rinke’s attendance at
work. Id. However, the Commissioner also argues—apparently contradicting her preceding
point—that Mr. Rinke’s other symptoms would improve in the absence of substance abuse. Id.
at 11–12. The Commissioner notes that the medical evidence in the record included statements
that Mr. Rinke’s mental functional abilities, diabetes-related symptoms, and edema would likely
improve if he stopped drinking. Id. at 12. Nonetheless, the Commissioner’s main point appears
to be that “the ALJ accepted that Plaintiff’s other impairments and their limiting effects
continued even in the absence of alcohol use.” Id.
Although the ALJ did consider evidence that alcohol abuse exacerbated Mr. Rinke’s
other impairments, I agree with the Commissioner that any such considerations were not material
to the ALJ’s ultimate conclusion that the limiting effects of Mr. Rinke’s other impairments
would not change in the absence of his substance abuse. The ALJ observed in his decision that
opinion evidence indicated that alcohol abuse likely negatively impacted Mr. Rinke’s mental
status functioning and that “the objective findings support that the severity of the claimant’s
symptoms would decrease in the absence of substance abuse.” R. 26, 34. The ALJ listed
improvements in Mr. Rinke’s mental status, mood and affect; sensory function, reflexes, gait and
station; and edema, atrophy, straight leg raise test, normal sensation, deep tendon reflexes, and
range of motion. R. 34. However, despite these observations, the ALJ determined that Mr.
Rinke’s RFC would be the same with or without substance abuse, with the exception that he
“would have multiple absences from the workplace each month due to alcohol abuse,” and that
without the alcohol abuse he would not have the absences. R. 22, 33. Therefore, although the
ALJ’s observation that some of Mr. Rinke’s symptoms would improve in the absence of
substance use might have led to confusion, the ALJ did make clear that any abatement in other

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symptoms would not affect the RFC calculation. R. 34. Moreover, even if it was error for the
ALJ to find, without clarifying, that Mr. Rinke’s other limitations would improve or be abated in
the absence of substance abuse, any such error was harmless because the ALJ did not alter the
RFC in reliance on such a finding. Instead, the ALJ’s reasoning satisfied the regulations’
requirement that the ALJ determine which limitations would remain and whether they would be
disabling: in this case, all other limitations would remain, but none of them would be disabling in
the absence of substance abuse. See 20 C.F.R. § 404.1535(b)(2).
Mr. Rinke does not dispute the remainder of the ALJ’s RFC determination or the ALJ’s
rationale with respect to the absences caused by his substance use disorder,1 but merely the
ALJ’s determination of which limitations remained absent the substance abuse. Because the
ALJ’s determination on this point satisfies the regulations, there is no need to remand to the ALJ
for further explanation on this point. Subject to the ultimate resolution of Mr. Rinke’s second
and third arguments, discussed below, this would put Mr. Rinke in the position of needing to
pursue treatment per 20 C.F.R. §§ 404.1536-1541.
B. Diabetes, Peripheral Neuropathy, and Lower-Extremity Edema.
Mr. Rinke next argues that the ALJ failed to consider Mr. Rinke’s diabetes, peripheral
neuropathy, and lower-extremity edema at steps two, four, and five in the five-step process. ECF
No. 15 at 9, 11. Mr. Rinke’s application for disability, which he initially filed in September
2012, alleged both neuropathy and diabetes mellitis as impairments. R. 87. The record indicates
that Mr. Rinke was diagnosed with diabetes and was told he had “some neuropathy” in his hands
and feet; the neuropathy in his feet caused balance problems and pain while walking, while the

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It is not entirely clear what evidence in the record the ALJ relies on to determine the extent of Mr.
Rinke’s absences from work caused by his substance abuse, but there is substantial evidence in the record
that Mr. Rinke’s substance abuse is of such a nature that it could conceivably cause such absences.
Regardless, Mr. Rinke’s failure to dispute this point waives the issue.
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neuropathy in his hands affected his dexterity. R. 78, 79. Mr. Rinke’s record also indicates that
he suffered from edema in his lower extremities during the period at issue. See, e.g., R. 2260,
2274, 2287. Despite the record evidence of these impairments, Mr. Rinke notes that while the
ALJ found at step two that his diabetic retinopathy was non-severe, he did not discuss his
diabetes, peripheral neuropathy, or edema at all in the severity determination at step two. ECF
No. 15 at 11. Moreover, at steps four and five, where the ALJ is required to consider both severe
and non-severe medically determinable impairments, Mr. Rinke alleges that the ALJ again failed
to discuss these three impairments. Id. As a result, Mr. Rinke argues that the ALJ’s RFC
determination is not supported by substantial evidence. Id.
At step two, where an ALJ considers the medical severity of a claimant’s impairments,
the ALJ must first determine whether the impairments are medically determinable. 20 C.F.R. §
404.1520(a)(ii). A medically determinable impairment is an “‘anatomical, physiological, or
psychological abnormality which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.’” Zagorianakos v. Colvin, 81 F. Supp. 3d 1036, 1041 (D. Colo. 2015)
(quoting 20 C.F.R. § 404.1508)). The ALJ must then take into account “all medically
determinable impairments, severe or not” to determine the claimant’s RFC and, relatedly, to
determine whether a claimant can perform past work or other work at steps four and five,
respectively. Grotendorst v. Astrue, 370 F. App’x 879, 883 (10th Cir. 2010) (emphasis in
original); see also 20 C.F.R. § 404.1545(a)(2). “It is beyond dispute that an ALJ is required to
consider all of the claimant’s medically determinable impairments, singly and in combination;
the statute and regulations require nothing less.” Salazar v. Barnhart, 468 F.3d 615, 621 (10th
Cir. 2006). “[A] failure to find an impairment medically determinable is essentially a step-four
error because the ALJ is only required to consider medically determinable impairments in the

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RFC at step four, whether severe or not.” Ray v. Colvin, 657 F. App’x 733, 734 (10th Cir. 2016)
(citing Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013)). “But even then, such error would
be obviated if the ALJ considered the non-medically determinable impairment in assessing the
RFC.” Id.
As an initial matter, the Commissioner contends, and I agree, that the ALJ’s failure to
discuss the three impairments at issue at step two was harmless, since the ALJ deemed other
impairments severe “and proceeded to evaluate the effects of all of Plaintiff’s impairments in
determining his RFC.” ECF No. 16 at 15 n.14; see also Ray 657 F. App’x at 734 (“[A]n error in
determining an impairment’s severity at step two . . . is not reversible if the ALJ proceeds further
to evaluate other impairments.”). Thus, the remaining question is whether the ALJ’s alleged
failure to discuss these impairments at steps four and five constituted reversible error.
First, to be fair, the ALJ did mention neuropathy and edema in his RFC discussion. He
acknowledged Mr. Rinke’s claim of neuropathy in his hands and feet. R. 22, 23. He noted Dr.
Jendry’s finding in October 2015 that, upon examination, Mr. Rinke had a normal gait without
weakness, edema or atrophy. R. 25, 27. He also mentioned Dr. Erickson’s finding in October
2013 that Mr. Rinke had “controlled diabetes.” R. 28. Whether the ALJ deems these
impairments severe or not, so long as they are medically determinable the ALJ should assess
their impact on Mr. Rinke’s RFC for steps four and five. See Bradley v. Colvin, 643 F. App’x
674, 676 (10th Cir. 2016) (“When assessing a claimant’s FRC, the ALJ must consider all the
relevant evidence in the record.”). Although I find it to be a close call, I conclude that the ALJ’s
mention of these conditions falls short of a specific assessment of their impact on Mr. Rinke’s
RFC. See Langley v. Barnhart, 373 F.3d 1116, 1123–24 (10th Cir. 2004) (finding that an ALJ’s

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failure to consider the combined effect of various alleged impairments on the claimant’s ability
to perform work-related activities required reversal of the ALJ’s decision).
The Commissioner counters that the ALJ’s RFC finding was supported by substantial
evidence and applied the correct legal standards, and that as a result Mr. Rinke’s “narrow[] and
indirect[] challenges to the RFC” based on the ALJ’s failure to evaluate these three impairments
should be rejected. ECF No. 16 at 14–15. This argument essentially attempts to minimize the
problem, not to deny it.
The Commissioner argues that the ALJ’s reference to “the entire record” and “all
symptoms” in determining Mr. Rinke’s RFC constituted sufficient consideration of the three
impairments. Id. at 16 (citing Bradley 643 F. App’x at 676 (finding an ALJ had sufficiently
discussed an impairment where he averred that he considered “the entire record” and “all
symptoms”). But Bradley is inapposite here. In Bradley the ALJ had discussed the hand
impairment at issue “in detail at the second step in the analysis” and concluded that the
impairment was not severe. 643 F. App’x at 676. Then at the fourth step the ALJ noted his
obligation to consider all impairments, including those deemed non-severe, and stated that he
had indeed taken into account “‘the entire record’ and ‘all symptoms.’” Id. The Tenth Circuit
noted that “[i]t is clear this included Bradley’s hand impairments because the ALJ discussed
them in detail earlier in the decision.” Id. Though the Bradley court also indicated that “‘our
practice is to take the ALJ at his word’” when he “‘indicates he has considered all the
evidence,’” the court emphasized that its holding was based on the fact that “the record shows
the ALJ considered Bradley’s hand impairments in determining his RFC.” Id. (quoting Wall v.
Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009)). In this case, the ALJ’s failure to consider Mr.
Rinke’s diabetes, neuropathy, or edema at the second, fourth, or fifth steps goes beyond the

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“‘merely technical omission[]’” contemplated in Bradley. Id. (quoting Keyes-Zachary v. Astrue,
695 F.3d 1156, 1166 (10th Cir. 2012)). Unlike in Bradley, there is no convincing indication in
the ALJ’s decision in this case that he actually did consider these impairments in his RFC
decision.
The Commissioner contends that the ALJ’s citations to evidence in the record in which
diabetes, neuropathy, and edema were discussed indicates sufficient consideration of these
impairments. ECF No. 16 at 16. However, such references do not amount to actual discussion
of the impairments. The record evidence the ALJ cited was not limited to a discussion of these
three impairments, and it is therefore not clear simply from his references to this evidence that,
or how, the ALJ actually considered these impairments. Moreover, though the ALJ asked Mr.
Rinke about his diagnosis of diabetes and his neuropathy during the hearing, it is not clear
whether or how the ALJ relied on Mr. Rinke’s testimony about these impairments in making his
decision. R. 78–79. Thus, the ALJ’s general consideration of evidence in the record does not
satisfy his obligation to consider these three medically determinable impairments in assessing
Mr. Rinke’s RFC.
The Commissioner’s citation of Ray v. Colvin, 657 F. App’x 733, 734 (10th Cir. 2016),
also fails to support her argument that because the ALJ considered evidence addressing these
impairments, any error in not finding these impairments medically determinable should be
obviated. ECF No. 16 at 6. In Ray, the claimant argued that the ALJ had erred in finding that a
particular impairment was not medically determinable at step two, and that the ALJ also should
have considered two other impairments at step four as non-severe impairments. 657 F. App’x at
734. The Tenth Circuit noted that the ALJ’s error in failing to find the impairments medically
determinable was obviated because the ALJ had nonetheless “expressly addressed” each of the

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impairment in assessing the RFC. Id. at 734–35. In this case, in contrast, the ALJ did not
expressly address any of the three impairments at issue, but as noted, instead merely referenced
evidence that in part discussed the impairments. Because a court must be able to “follow the
adjudicator’s reasoning in conducting [its] review,” the ALJ’s opaque reference to other
evidence in the record is insufficient to allow the Court to determine whether the ALJ actually
considered these impairments. Keyes-Zachary v. Astrue, 695 F.3d at 1166. As such, I am not
satisfied that the ALJ actually considered these impairments at steps two, four, and five, as
required.
Finally, I am unconvinced by the Commissioner’s argument that “the record did not
otherwise support additional RFC limitations because of Plaintiff’s diabetes, neuropathy, or
edema . . . in the absence of alcohol.” ECF No. 16 at 16. The Commissioner cites various
medical records substantiating limitations possibly attributable to Mr. Rinke’s diabetes,
neuropathy, and edema, and she discusses why several of these limitations would likely not exist
or be as problematic were Mr. Rinke not also drinking. Such an argument is essentially an
impermissible post hoc rationalization of the ALJ’s decision, and it also tends to contradict the
Commissioner’s argument that the ALJ’s RFC determination was not based on changes in any of
Mr. Rinke’s limitations in the absence of alcohol.
Further discussion of these impairments might not change the overall result, just as
further discussion of the effects of Mr. Rinke’s obesity, see infra, might not change the overall
result. In my view, the ALJ’s evaluation of Mr. Rinke’s claimed disabilities, and the
overwhelming impact of his inability to control his alcohol consumption (and apparently lack of
treatment for that disease), was generally thorough and persuasive. But that further discussion is

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necessary to comply with the requirements of the law, and it is for the ALJ, not this Court, to
determine whether that further discussion might change the outcome.
C. Appeals Council’s Instruction.
Finally, Mr. Rinke argues that the ALJ failed to follow the Appeals Council’s command
upon remand when he failed to elaborate how he took into account Mr. Rinke’s obesity in
formulating his RFC. ECF No. 15 at 12. In its remand order of September 2015, the Appeals
Council noted that the ALJ had “identified obesity as a severe impairment” in his initial decision,
but he had not “include[d] an adequate evaluation of obesity and its effect on the claimant’s
functioning as required by Social Security Ruling 02-1p.” R. 107. The Appeals Council
explained that according to SSR 02-1p, “[w]hen obesity is an impairment, an assessment should
be made of the effect it has upon the individual’s ability to perform routine movement and
necessary activity within the work environment.” R. 106. Therefore, the Appeals Council
ordered the ALJ to “[e]valuate the claimant’s obesity” as required by SSR 02-1p. R. 107. SSR
02-1p provides that “[a]s with any other impairment, we will explain how we reached our
conclusions on whether obesity caused any physical or mental limitations.” SSR 02-1p, 2002
WL 34686281, at *7 (Sept. 12, 2002).
In his decision on remand, the ALJ found that Mr. Rinke’s obesity was a severe
impairment at step two in the five-step process. R. 19. The ALJ noted Mr. Rinke’s Body Mass
Index, which indicated his obesity, and the ALJ “stated that he took Plaintiff’s obesity into
account.” ECF No. 16 at 19. The Commissioner urges the Court to be satisfied with this
statement and to simply “take the ALJ at his word.” Id. However, as Mr. Rinke points out,
while the ALJ articulated the potential impacts of obesity in general and stated that he had taken
these considerations into account, there is no express discussion of Mr. Rinke’s obesity or its

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effect on his health and other impairments. ECF No. 15 at 12–13. I agree with Mr. Rinke that
this does not suffice.
The Commissioner argues that SSR 02-1p “does not automatically suggest that such
effects [of obesity] exist in every case, nor does it mandate additional RFC restrictions or a
finding of ‘disabled’ under any particular circumstances.” ECF No. 16 at 18 (citing 2002 WL
34686281). Though true, this is not the point. The ALJ must provide more than a rote recitation
of the “possible effects” of obesity. See Hulen v. Astrue, 909 F. Supp. 2d 1065, 1071 (S.D. Iowa
2012) (“[O]n remand the ALJ was instructed to evaluate Plaintiff’s obesity pursuant to SSR 021p . . . . Although the ALJ noted that he considered Plaintiff’s obesity, his analysis is
unsupported by any evidence whatsoever.”). The Appeals Council’s remand required an
assessment of the effects of his obesity on his specific ability to function. See, e.g., Jones v.
Astrue, No. CV-11-8-3772-NE, 2013 WL 360313, at **1-3 (N.D. Ala. Jan. 28, 2013) (discussing
the required evaluation an ALJ must make of the effect of obesity on a claimant’s RFC and
ability to perform routine movement and necessary physical activity within the work
environment).
The Commissioner cites Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004), in
which the Tenth Circuit found no error when an ALJ discussed “possible ramifications of [the
claimant’s] obesity when he addressed the lack of marked arthritic pain, joint deformity, or
musculoskeletal impairment.” However, in the present case, as noted, the ALJ did not engage in
any such discussion with respect to Mr. Rinke’s obesity, instead describing the potential
ramifications of obesity in general.
The Commissioner also cites Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007), in
which the Tenth Circuit instructed that a court should generally “take a lower tribunal at its word

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when it declares that it has considered a matter.” However, in Flaherty, the Tenth Circuit found
and discussed evidence that the ALJ had actually considered the matter at issue, emphasizing
that “the ALJ’s discussion of the evidence and his reasons for his conclusions demonstrate that
he considered all of Ms. Flaherty’s impairments.” 515 F.3d at 1071 (emphasis added); see also
Bradley, 643 F. App’x at 676 (noting that courts generally take ALJs at their word but
nonetheless examining the ALJ’s decision to confirm that he had actually considered the matter
as he claimed). In this case, in contrast, outside of the ALJ’s repetition of the general
implications of obesity and his claim that he considered the effects of obesity in this case, there is
simply no explanation as to how Mr. Rinke’s obesity affects his ability to function in a work
environment. As such, the ALJ has failed to follow the order of the Appeals Council on remand.
See Carstensen v. Colvin, 178 F. Supp.3d 1130, 1139 (D. Colo. 2016) (“Boilerplate language,
unconnected to any evidence in the record, will not suffice to support an ALJ’s conclusion.”).
I am further unconvinced by the Commissioner’s argument that the reason the ALJ “did
not further discuss Plaintiff’s obesity” was because “this reasonably reflected the lack of record
evidence suggesting it caused any particular functional limitations beyond those the ALJ
included in the RFC finding.” ECF No. 16 at 19. While this is a logical explanation, it is
another post hoc rationalization for the ALJ’s reasoning. Especially in the context of an explicit
instruction from the Appeals Council on remand, the ALJ himself could have noted that he had
examined Mr. Rinke’s obesity but found no functional limitations. Instead, by failing to provide
any express discussion of Mr. Rinke’s obesity beyond his assurance that he had considered it, the
ALJ has not explained how Mr. Rinke’s obesity did or did not affect his RFC.
I am similarly dissatisfied by the Commissioner’s argument that because the ALJ
provided a more restrictive RFC than Dr. Jendry, who did opine on the functional impacts of Mr.

16

Rinke’s obesity, the ALJ “more than adequately accounted for Plaintiff’s obesity.” Id. at 20.
The Commissioner again cites Howard, where a consultative examination report taking into
account the claimant’s obesity supported the ALJ’s RFC determination. 379 F.3d at 948.
However, in that case, as noted, the ALJ had actually discussed the ramifications of the
claimant’s obesity, whereas the ALJ in this case did not, instead discussing obesity in general
terms. Id. As such, the fact that the ALJ’s RFC happens to be consistent with a consultative
examiner’s limitations in this case—albeit more restrictive, which begs the question of whether
the ALJ actually relied on that examination’s limitations—is not sufficient to find that the ALJ
actually considered the effects of obesity in this case as required by the Appeals Council.
Finally, the Commissioner cites Razo v. Colvin, 663 F. App’x 710, 716 (10th Cir. 2016)
(unpublished), in which the Tenth Circuit found that an ALJ had properly considered the
claimant’s obesity. In that case “[t]he ALJ observed that none of the medical opinions
specifically addressed the impact of Mr. Razo’s obesity on his other impairments.” 663 F. App’x
at 716. The ALJ went on to note that because the claimant’s obesity would have been obvious to
his medical sources, they would “be expected to include the effects of obesity in the limitations
indicated.” Id. As a result, the court’s conclusion that “[t]he ramifications of obesity are
subsumed within the discussion of Mr. Razo’s other medical conditions” is based on the ALJ’s
finding substantially the same. Id. Because in this case there was no such finding by the ALJ—
let alone any discussion of Mr. Rinke’s obesity beyond simply repeating the requirements of
SSR 02-1p—there is no indication that the ALJ found that the ramifications of his obesity were
subsumed within the discussion of his other medical conditions.
Because the ALJ failed to discuss the implications of Mr. Rinke’s obesity, the ALJ’s
decision must be remanded for further analysis consistent with the Appeals Council’s instruction.

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If the ALJ is unable to provide more on the evidence in the record, then he should obtain an
additional medical evaluation focused on the obesity issue.
ORDER
For the reasons described above, the Court REVERSES and REMANDS the
Commissioner’s decision denying claimant Christopher Thomas Rinke’s application for
disability insurance benefits. Upon remand, the ALJ is instructed to follow the guidance in this
order with respect to the proper consideration of Mr. Rinke’s diabetes, neuropathy, edema, and
obesity.
DATED this 17th day of April, 2018.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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