WILLIAMS v. COLVIN

Filing 16

MEMORANDUM ORDER - The decision of the Commissioner is AFFIRMED and plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income are DENIED. The clerk is directed to close the file. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on 10/8/2015. (djb)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
CLIFTON AUGUSTUS WILLIAMS,
Plaintiff,
v.

Case No. 3:14cv601/CJK

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
________________________________/
MEMORANDUM ORDER
This case is now before the court pursuant to 42 U.S.C. § 405(g) for review of
a final determination of the Commissioner of Social Security (“Commissioner”)
denying Clifton Augustus Williams’ applications for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34, and
Supplemental Security Income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C.
§§ 1381-83. The parties have consented to Magistrate Judge jurisdiction, pursuant
to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, for all proceedings in
this case, including entry of final judgment. Upon review of the record before the
court, I conclude the findings of fact and determinations of the Commissioner are
supported by substantial evidence. The decision of the Commissioner, therefore, will
be affirmed, and the applications for benefits will be denied.
ISSUES ON REVIEW
Mr. Williams, who will be referred to as claimant, plaintiff, or by name, raises
two issues. He claims: (1) the Administrative Law Judge (“ALJ”) failed to pose a

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complete hypothetical question to the vocational expert which comprised all of Mr.
Williams’ impairments; and (2) the ALJ erred as a matter of law in failing to consider
the severity and impact of claimant’s obesity on his ability to work, or in combination
with his other severe and non-severe impairments. (Doc. 14).
PROCEDURAL HISTORY
On January 14, 2009, Mr. Williams filed applications for DIB and SSI, alleging
disability beginning on January12, 2009. T. 62.1 The applications were denied
initially on May 1, 2009, and upon reconsideration on July 16, 2009. T. 62. Plaintiff
appeared at a hearing before an ALJ on August 24, 2010, and the ALJ subsequently
issued a decision finding plaintiff was not disabled from January 12, 2009, to
September 7, 2010. T. 62, 74-75.
On November 17, 2010, plaintiff completed new applications for DIB and SSI
and again alleged disability beginning on January 12, 2009. T.169-84. The
Commissioner denied the applications initially and on reconsideration. T. 99-106,
113-18. Claimant appeared before the ALJ for a hearing on November 26, 2012. T.
38. After the hearing, the ALJ found claimant was not disabled under the Act from
September 8, 2010, through December 14, 2012. T. 17-37. The Appeals Council
denied claimant’s request for further review and, as a result, the ALJ’s decision
became the final determination of the Commissioner. T. 1-6. The determination of
the Commissioner is now before the court for review.
FINDINGS OF THE ALJ
In her written decision, the ALJ made a number of findings relative to the

1

The administrative record, as filed by the Commissioner, consists of eight volumes (docs.
12-2 through 12-9) and has 549 consecutively numbered pages. References to the record will be by
“T.” for transcript, followed by the page number.

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issues raised in this appeal:
•

Claimant has not engaged in substantial gainful activity since September

8, 2010, the day after the date of the prior unfavorable Administrative Law Judge
decision. T. 23.
•

Claimant has the following severe impairments: uncomplicated diabetes

mellitus, hypertension, and asthma. T. 23.
•

Claimant does not have an impairment or combination of impairments

that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. T. 27.
•

Claimant has the residual functional capacity to perform light work as

defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except claimant should avoid
concentrated exposure to extreme cold, heat, wetness, and humidity, he should avoid
concentrated exposure to noxious fumes and pollutants, and he requires work that is
limited to simple, routine, and repetitive tasks. T. 27.
•

Claimant is unable to perform any of his past relevant work. T. 30.

•

Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform. T. 31.
•

Claimant has not been under a disability, as defined in the Social

Security Act, from September 8, 2010, through December 14, 2012. T. 32.
STANDARD OF REVIEW
A federal court reviews a Social Security disability case to determine whether
the Commissioner’s decision is supported by substantial evidence and whether the
ALJ applied the correct legal standards. See Lewis v. Callahan, 125 F.3d 1436, 1439
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(11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991)
(“[T]his Court may reverse the decision of the [Commissioner] only when convinced
that it is not supported by substantial evidence or that proper legal standards were not
applied.”). Substantial evidence is “‘such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)).
With reference to other standards of review, the Eleventh Circuit has said that
“‘[s]ubstantial evidence is more than a scintilla . . . .’” Somogy v. Comm’r of Soc.
Sec., 366 F. App’x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d at1439).
Although the ALJ’s decision need not be supported by a preponderance of the
evidence, therefore, “it cannot stand with a ‘mere scintilla’ of support.” See Hillsman
v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). Even if the evidence preponderates
against the Commissioner’s decision, the decision must be affirmed if supported by
substantial evidence. See Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
When reviewing a Social Security disability case, the court “‘may not decide the facts
anew, re-weigh the evidence, or substitute [its] judgment for that of the
[Commissioner] . . . .’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). A
reviewing court also may not look “only to those parts of the record which support
the ALJ[,]” but instead “must view the entire record and take account of evidence in
the record which detracts from the evidence relied on by the ALJ.” See Tieniber v.
Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). Review is deferential to a point, but
the reviewing court conducts what has been referred to as “an independent review of
the record.” See Flynn v. Heckler, 768 F.2d. 1273 (11th Cir. 1985); see also Getty ex
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rel. Shea v. Astrue, No. 2:10-cv-725-FtM-29SPC, 2011 WL 4836220 (M.D. Fla. Oct.
12, 2011); Salisbury v. Astrue, No. 8:09-cv-2334-T-17TGW, 2011 WL 861785 (M.D.
Fla. Feb. 28, 2011).2
The Social Security Act defines disability as an “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 which has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). To qualify as a disability, the physical or mental impairment must be
so severe that the plaintiff not only is unable to do his previous work, “but cannot,
considering [his] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
Pursuant to 20 C.F.R. §§ 404.1520(a)-(g), the Commissioner analyzes a
disability claim in five steps:
1.

If the claimant is performing substantial gainful activity, he is not

disabled.
2.

If the claimant is not performing substantial gainful activity, his

impairments must be severe before he can be found disabled.
3.

If the claimant is not performing substantial gainful activity and he has

severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if his impairments meet or medically equal the criteria of

2

The Eleventh Circuit not only speaks of an independent review of the administrative record,
but it also reminds us that it conducts a de novo review of the district court’s decision on whether
substantial evidence supports the ALJ’s decision. See Ingram v. Comm'r of Soc. Sec. Admin., 496
F.3d 1253, 1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
Case No. 3:14cv601/CJK

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any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4.

If the claimant’s impairments do not prevent him from doing past

relevant work, he is not disabled.3
5.

Even if the claimant’s impairments prevent him from performing his past

relevant work, if other work exists in significant numbers in the national economy
that accommodates the claimant’s residual functional capacity and vocational factors,
he is not disabled.
The issues raised here implicate step five. The Eleventh Circuit has explained
the operation of step five:
In practice, the burden temporarily shifts at step five to the
Commissioner. The Commissioner must produce evidence that there is
other work available in significant numbers in the national economy that
the claimant has the capacity to perform. In order to be considered
disabled, the claimant must then prove that he is unable to perform the
jobs that the Commissioner lists. The temporary shifting of the burden
to the Commissioner was initiated by the courts, and is not specifically
provided for in the statutes or regulations.
Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001) (citations omitted); see
also Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999) (quoting Walker v. Bowen,
834 F.2d 635, 640 n.3 (7th Cir. 1987)) (“The shifting of the burden of proof is not
statutory, but is a long-standing judicial gloss on the Social Security Act.”).

3

Claimant bears the burden of establishing a severe impairment that keeps him from
performing his past work. See 20 C.F.R. §§ 404.1512, 416.912. ; Chester v. Bowen, 792 F.
2d 129, 131 (11th Cir. 1986).
Case No. 3:14cv601/CJK

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FACT BACKGROUND AND MEDICAL HISTORY4
At the hearing before the ALJ, claimant offered testimony as to his health, daily
activities, and work experience. He is 6'1'' tall and weighs 260 pounds. T. 42. He
alleged he is unable to work due to diabetes, asthma, high blood pressure, and gout.
T. 45. His diabetes causes his eyes to “start burning” after watching TV for an
extended period. T. 52. The medication he takes for diabetes makes him “sick all the
time.” T. 46. His asthma causes wheezing in his throat about twice a week but
Ventolin alleviates the problem. T. 47. Claimant’s high blood pressure causes him
to “stay sick all the time” and he has problems with gout despite taking medication.
T. 48. He has migraine headaches twice a day that last for forty-five minutes. T. 5253. He also experiences muscle pain in his feet. T. 54. He is not able to walk long
distances without shortness of breath, and cannot lift anything over ten pounds. T. 49.
He can walk for thirty minutes, stand for twenty minutes, and sit for thirty minutes.
T. 49. He is able to grocery shop on his own and takes public transportation or
receives rides from friends. T. 50. He cannot climb a set of stairs and cannot use his
knees to stoop or squat. T. 50. He can, without assistance, feed himself, bathe, and
perform light housework. T. 51. He is able to attend church with his parents. T. 5152. He spends a typical day watching TV and crocheting. T. 52. Claimant also
suffers from depression, as well as stress-related anxiety. T. 53. From 2006 to 2009,
claimant served food and washed dishes at the Pensacola Civic Center. T. 43-44. He
4

The recitation of medical and historical facts of this case, as set out below, is based on the
court’s independent review of the record. The facts below, where not derived from the medical
records, are based largely on plaintiff’s testimony in that regard. Although intended to be thorough
and to provide an overview of the claimant’s history of care and treatment, the synopsis of medical
evidence will be supplemented as necessary in the Analysis section.
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performed custodial work for Rosie O’Grady’s in 2005 and 2006, and for Escambia
County from 2000 to 2005. T. 44.
From 2009 to 2012, plaintiff sought treatment for various conditions at the
Escambia Community Clinic. In 2009, his weight ranged from 214 to 280 pounds.
T. 371, 374, 377, 380, 383, 386, 388, 390, 396, 398, 401. From 2010 to 2012, his
weight was noted to be between 250 and 284 pounds. T. 426, 429, 432, 438, 442,
446, 473, 479, 485, 487, 490, 523, 526, 537. His body mass index (“BMI”) also
consistently measured above 30.5 T. 426, 429, 432, 438, 442, 446, 473, 479, 485,
487, 490, 523, 526, 537. On several occasions, Mr. Williams was diagnosed as
obese. T. 423-24. He was advised to diet and exercise to lose weight and help
control his blood pressure and diabetes. T. 375, 384, 433. The record contains little
else concerning objective medical findings.
ANALYSIS
Plaintiff claims: (1) the Administrative Law Judge (“ALJ”) failed to pose a
complete hypothetical question to the vocational expert which comprised all of Mr.
Williams’ impairments; and (2) the ALJ erred as a matter of law in failing to consider
the severity and impact of claimant’s obesity on his ability to work, or in combination
with his other severe and non-severe impairments. (Doc. 14).

5

“BMI is a measurement of body fat based on height and weight. It applies to both adult men
and women. The National Institutes of Health [NIH] established medical criteria for the diagnosis
of obesity in its Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight
and Obesity in Adults (NIH Publication No. 98-4083, September 1998). These guidelines classify
overweight and obesity in adults according to Body Mass Index. Obesity is a risk factor that
increases an individual’s chances of developing impairments in most body systems. SSR 02-1P.”
See Brown v. Barnhart, 325 F. Supp. 2d 1265, 1271 n.18 (N.D. Ala. 2004). A body mass index of
30 or greater has been found to equate with obesity. Id. at 1272.
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Claimant asserts that the hypothetical question to the vocational expert was
incomplete because it failed to state that claimant is limited to “repetitive” tasks.
(Doc. 14, p. 4-8). Based on this, plaintiff says the question did not accurately reflect
the true residual functional capacity (“RFC”) and, therefore, the vocational expert’s
testimony does not provide substantial support for the ALJ’s determination that
claimant can perform other jobs that exist in significant numbers in the national
economy. (Id.).
As noted above, the ALJ found claimant had the residual functional capacity
to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant should avoid concentrated exposure to extreme cold,
heat, wetness, and humidity, he should avoid concentrated exposure to
noxious fumes and pollutants, and he requires work that is limited to
simple, routine and repetitive tasks.
T. 27. At the November 26, 2012 hearing, the ALJ posed the following hypothetical
to the vocational expert:
I would like you to consider a hypothetical individual of similar age,
education and prior work history as this claimant. I would like you to
assume an individual who could lift 20 pounds on an occasional basis,
10 pounds on a frequent basis, can sit at least six hours during an eight
hour work day, stand and walk in combination at least six hours during
an eight hour work day. Such a hypothetical individual would need to
have a position which avoided concentrated exposure to extremes in
heat or cold, wetness or humidity, would need to avoid exposure to dust,
fumes and gases, would also require work that would involve no more
than simple tasks with short, simple instructions.
T. 55-56. In response, the vocational expert testified that the hypothetical individual
would be precluded from performing claimant’s past relevant work but could perform

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work as a production assembler6 (DOT 706.687-010),7 garment bagger (DOT
920.687-018), and poultry worker (DOT 525.687-074). T. 56. The VE further
testified that all three occupations were “light duty.” T. 56.
Although the ALJ omitted the word “repetitive” from the hypothetical, such is
not harmful error here, because the jobs identified by the vocational expert can be
performed by an individual limited to repetitive tasks. The job description for a
production assembler in the DOT provides:
Performs repetitive bench or line assembly operations to mass-produce
products, such as automobile or tractor radiators, blower wheels,
refrigerators, or gas stoves: Places parts in specified relationship to each
other. Bolts, clips, screws, cements, or otherwise fastens parts together
by hand, or using handtools or portable power tools. May tend
machines, such as arbor presses or riveting machine, to perform force
fitting or fastening operations on assembly line. May be assigned to
different work stations as production needs require. May work on line
where tasks vary as different model of same article moves along line.
May be designated according to part or product produced.

6

The transcript from the hearing indicates the vocational expert testified that the hypothetical
individual could perform work as a “reduction assembler.” T. 56. The DOT code provided by the
vocational expert, however, corresponds to the job of “production assembler,” which suggests the
hearing transcript contains a typographical error. See Dictionary of Occupation Titles, 706.687-010,
1991 WL 679074.
7

“The [Dictionary of Occupational Titles] and its supplement, Selected Characteristics of
Occupations Defined in the Revised Dictionary of Occupational Titles (SCO), comprise a
comprehensive listing of job titles in the United States, along with detailed descriptions of
requirements for each job, including assessments of exertional levels and reasoning abilities
necessary for satisfactory performance of those jobs. The Commissioner recognizes the DOT/SCO
publications as authoritative, and routinely relies on them ‘for information about the requirements
of work in the national economy.’” Gaspard v. Soc. Sec. Admin. Comm’r, 609 F. Supp. 2d 607, 61213 (E.D. Tex. 2009) (quoting Soc. Sec. R. 00-4p, 2000 WL 1898704, at *2).
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See DOT 706.687-010, 1991 WL 679074 (emphasis added). As the Commissioner
correctly notes, the DOT/SCO indicates all three occupations involve “[p]erforming
REPETITIVE or short-cycle work[.]” (Doc. 15, p. 6); DOT 706.687-010, 1991 WL
679074; DOT 920.687-018, 1991 WL 687965; DOT 525.687-074, 1991 WL 674456.
In addition, the “Guide for Occupational Exploration for each job begins with interest
area 06.” (Doc. 15, p. 6). The DOT/SCO “defines this interest area as ‘industrial’
involving ‘repetitive, concrete, organized activities in a factory setting.’” (Doc. 15,
p. 6) (quoting Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles, Appendix A - Using Selected Characteristics for
Occupational Exploration).
Moreover, recent district court decisions establish that vocational experts and
ALJs often conclude that individuals limited to simple, routine, repetitive tasks are
nonetheless capable of performing jobs such as production assemblers, garment
baggers, and poultry workers. See e.g., Johnson v. Colvin, No. 5:13-CV-509-FL,
2014 WL 4636991, *5 (E.D. N.C. Sept. 16, 2014) (vocational expert testified
individual “limited to simple, repetitive tasks” could perform work “as an
assembler”); Logsdon v. Colvin, No. 12-3522-REL-SSA, 2014 WL 1153061, *21
(W.D. Mo. Mar. 23, 2014) (vocational expert testified individual who could “pay
attention well enough to carry out a simple routine or simple repetitive tasks” was
capable of work as a production assembler); Johnson v. Astrue, No. CA 11-0460-C,
2012 WL 1565644, *3, 6 (S.D. Ala. May 2, 2012) (vocational expert testified that
individual “limited to the performance of simple, routine, repetitive tasks” was
capable of work as a production assembler); Browne v. Comm’r of Soc. Sec., – F.
Supp. 3d – , 2015 WL 5449911, *2 (S.D. N.Y. Sept. 16, 2015) (vocational expert
testified individual “who could only do simple and repetitive tasks . . . would be able
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to perform” job as a “bagger, DOT code 920.687-018”); Strople v. Colvin, No. 3:13cv-1518-J-34MCR, 2015 WL 1470866, *3 (M.D. Fla. March 31, 2015) (affirming
ALJ’s decision where plaintiff was found capable of performing duties of a garment
bagger despite being limited to “simple, routine, repetitive, tasks with up to 3-step
commands”); Jones v. Colvin, No. 13-0259-REL-SSA, 2014 WL 3925547, *17 (W.D.
Mo. Aug. 12, 2014) (vocational expert testified individual “able to perform simple,
repetitive tasks” could “work as a garment bagger”); Bao Yang v. Colvin, No. C131565-RSM, 2014 WL 1775971 (W.D. Wash. May 5, 2014) (noting poultry
eviscerator is “categorized as ‘repetitive’ work”); McLean v. Colvin, Civil Action No.
3:11-cv-00236, 2013 WL 1826435, *11-12 (M.D. Tenn. Apr. 30, 2013) (vocational
expert testified that individual able to “maintain concentration and persistence
necessary to perform routine, repetitive one to two step tasks” could perform job as
a “poultry cleaner, DOT 525.687-074”); Liles v. Astrue, Civil No. 09-2034, 2010 WL
1345375, *5 n.7 (W.D. Ark. Mar. 31, 2010) (vocational expert testified that
individual “able to perform activities with non-complex simple instructions that
require little judgment, are routine and repetitive, and are learned by rote with few
variables . . . could perform work as a meat processor, DOT # 525.687-074”).
Thus, all three occupations the vocational expert identified can be performed
by an individual limited to repetitive tasks. Because the ALJ’s failure to include the
word “repetitive” in the hypothetical did not affect the outcome of the case, the error
is harmless and not a basis for remand. See Hunter v. Comm’r of Soc. Sec., 609 F.
App’x 555, 558 (11th Cir. 2015) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th
Cir. 1983)) (“To the extent that an administrative law judge commits an error, the
error is harmless if it did not affect the judge’s ultimate determination.”).

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Plaintiff next claims the ALJ failed to consider the impact of obesity in
determining the RFC.8 (Doc. 14, p. 8-12). In particular, claimant says the ALJ
should have considered the effects of obesity on the other impairments, as obesity
could exacerbate the asthma and gout. (Doc. 14, p.11). Claimant concludes that
because the ALJ failed to consider the impact of obesity on the other impairments, the
RFC formulated by the ALJ is not supported by substantial evidence. (Doc. 14, p. 1112).
Although the record corroborates Mr. Williams’ obesity, it does not reflect that
obesity caused any work-related limitations not already accounted for in the RFC.
See Wind v. Barnhart, 133 F. App’x 684, 690-91 (11th Cir. 2005) (quoting McCruter
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)) (“[A] diagnosis or a mere showing
of ‘a deviation from purely medical standards of bodily perfection or normality’ is
insufficient; instead, the claimant must show the effect of the impairment on [his]
ability to work.”). In his application for benefits, plaintiff was asked to “[l]ist all of
the physical or mental conditions . . . that limit your ability to work.” T. 198. In
response, plaintiff listed asthma, high blood pressure, learning disability, mental
health, and diabetes. T. 198. He included no reference to obesity. Similarly, at the
hearing before the ALJ, plaintiff was asked “[w]hat kind of problems do you have
that you believe make you not able to work?” T. 45. Plaintiff responded, “[d]iabetes,
asthma and high blood pressure and then also I got the gout.” T. 45. Neither
claimant nor his attorney ever suggested obesity resulted in any functional limitations

8

Although the ALJ’s decision never specifically mentions obesity, it does note that
practitioners at the Escambia Community Clinic advised claimant “to follow a restricted diet and to
do walking exercise at his own pace to help with weight loss and glucose and blood pressure
control.” T. 23.
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or exacerbated claimant’s other conditions. Given that plaintiff never claimed his
obesity resulted in functional limitations or affected his other conditions, the ALJ did
not err in failing to consider obesity as a factor in formulating the RFC. The ALJ is
not obligated to consider, when evaluating claimant’s record, any impairments that
have not been specified by the claimant. See Street v. Barnhart, 133 F. App’x 621,
627 (11th Cir. 2005) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996))
(noting “it has been persuasively held that an ‘administrative law judge is under no
obligation to investigate a claim not presented at the time of the application for
benefits and not offered at the hearing as a basis for disability.’”).
In addition, despite making the general assertion that “Mr. Williams’
limitations as a result of his obesity, both standing alone and in combination with
other severe and non-severe impairments, were not included in the ALJ’s RFC
assessment,” plaintiff has failed to elaborate at all upon the nature of any obesityrelated limitations. (Doc. 14, p. 11-12). Plaintiff has merely cited his weight and
speculated about the possible effects of obesity. See (Doc. 14, p. 11) (“This is
necessary in Mr. Williams’ case as the ALJ found him to suffer with a severe
impairment of asthma and a non-severe impairment of gout, both of which could be
further exacerbated by his obesity.”) (emphasis added). Both of the conditions that
plaintiff claims could be affected by obesity–asthma and gout–were thoroughly
discussed by the ALJ. T. 23-24, 27-30. The ALJ noted “the treatment records from
the [Escambia Community Clinic] from September 2010 through September 2012
reveal[] no mention of complaints of . . . symptoms of gout, no diagnosis of . . . gout,
and no prescribed treatment for . . . gout.” T. 24. As for asthma, the ALJ indicated
plaintiff’s complaints of asthma were inconsistent, “[t]he evidentiary record contains
no documentation of emergency room visits or hospitalizations for asthma attacks,
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and the [Escambia Community Clinic] treatment records indicate that the claimant’s
asthma has also been shown capable of control with medications.” T. 23-24, 27. The
ALJ also stated:
[T]he claimant’s ability to engage in a wide array of activities of daily
living is persuasive evidence that the claimant’s alleged symptoms
resulting from physical impairments are not totally disabling. The
claimant testified that he is able to care for his personal needs without
assistance, able to perform all routine household chores, able to do his
own shopping, able to prepare simple meals for himself, that he visits
with friends, and that he attends church with his parents. The claimant
also indicated that he enjoyed watching television and crocheting.
T. 30.

In any event, the ALJ expressly accounted for plaintiff’s asthma by

formulating an RFC that reduced “his exertional capacity from very heavy to light”
and required him “to avoid concentrated exposure to extreme cold, heat, wetness,
humidity, noxious fumes, and pollutants.” T. 28.
In his legal argument, plaintiff references a part of SSR 02-1p discussing the
combined effects of obesity with other impairments. A pertinent part of the ruling,
however, states that the SSA “will not make assumptions about the severity or
functional effects of alleged obesity combined with other impairments.” See SSR
02-1p. Indeed, “[o]besity in combination with another impairment may or may not
increase the severity or functional limitations of the other impairment.” Id. (emphasis
added). The ruling also explains that “[t]he fact that obesity is a risk factor for other
impairments does not mean that individuals with obesity necessarily have any of these
impairments.” Id. Here, plaintiff identifies no record evidence that he complained
of limitations stemming from obesity, nor any evidence that he complained, or a
doctor concluded, that any of his other alleged impairments were exacerbated by
obesity.
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This court has found no evidence in the record demonstrating that additional
limitations have been placed on plaintiff as a result of his weight, and plaintiff has not
pointed to any such evidence in the record. Here, a remand for the ALJ’s failure to
mention obesity is not required because such would not affect the outcome of the
case. See Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005) (remand not
required where claimant never mentioned obesity as a condition that contributed to
her inability to work, even when directly asked to describe her impairments, and she
only generally alleged that her weight made it more difficult for her to stand, walk,
and manipulate her hands and fingers); Skarbek v. Barnhart, 390 F.3d 500, 504 (7th
Cir. 2004) (remand not required where claimant did not specifically claim obesity as
an impairment, either in his disability application or at his hearing, and although
references to his weight in the medical records were likely sufficient to alert the ALJ
to the impairment, the claimant did not specify how his obesity further impaired his
ability to work, but merely speculated that his weight makes it more difficult to stand
and walk).
CONCLUSION
After careful review, the undersigned concludes the ALJ’s failure to include
the word “repetitive” in the hypothetical posed to the vocational expert constitutes
only harmless error, because any of the jobs identified by the expert can be performed
by an individual limited to repetitive tasks. In addition, the ALJ’s failure to discuss
claimant’s obesity does not require remand, because claimant never alleged he was
disabled as a result of obesity and he failed to identify evidence in the record
indicating obesity resulted in additional work-related limitations or exacerbated other
impairments.

Case No. 3:14cv601/CJK

Page 17 of 17

Accordingly, it is ORDERED:
1.

The decision of the Commissioner is AFFIRMED and plaintiff’s

applications for Disability Insurance Benefits and Supplemental Security Income are
DENIED.
2.

The clerk is directed to close the file.

DONE AND ORDERED this 8th day of October, 2015.

/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Case No. 3:14cv601/CJK