Arellano v Astrue

Filing 19

MEMORANDUM DECISION AND ORDER that the Commissioners decision finding that the Petitioner is not disabled within the meaning of the Social Security Act be AFFIRMED and that the petition for review be DISMISSED. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARGARET CHRISTINE
ARELLANO,

Case No. 2:11-cv-00081-MHW

Petitioner,

MEMORANDUM DECISION AND
ORDER

v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is Petitioner Margaret
Christine Arellano’s (“Petitioner”) Petition for Review (Dkt. 1) of the Respondent’s
denial of social security benefits, filed March 3, 2011. The Court has reviewed the
Petition for Review and the Answer, the parties’ memorandums, and the administrative
record (“AR”). For the reasons that follow, the Court will affirm the decision of the
Commissioner.

MEMORANDUM DECISION AND ORDER - 1

I.
Procedural and Factual History
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on October 26, 2006, alleging disability due to congestive heart failure,
obesity, knees, and depression. Petitioner’s application was denied initially and on
reconsideration, and a request for a hearing was timely filed.1
Administrative Law Judge (“ALJ”) Ronald S. Robins held a hearing on December
5, 2008, taking testimony from Petitioner and vocational expert Mark J. Kelman. AR 2449. ALJ Robins issued a decision finding Petitioner not disabled on August 3, 2009. AR
15-21.
Petitioner filed a timely appeal to the Appeals Council which denied her request
for review, making the ALJ’s decision the final decision of the Commissioner. AR 1-3.
Petitioner appealed this final decision to this Court. The Court has jurisdiction to review
the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was 61 years old. She has an eleventh grade
education and her past relevant work includes timekeeper, desk clerk, and auditor.
II.
Sequential Process
The Commissioner follows a five-step sequential evaluation for determining

1

Petitioner is currently receiving disability benefits based on a subsequent application.

MEMORANDUM DECISION AND ORDER - 2

whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The claimant has
the burden of proving disability within the meaning of the Social Security Act. Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). More specifically, the claimant has the
burden of proving disability in the first four steps of the sequential evaluation after which
the burden moves to the Commissioner at the fifth step. Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005) (citing Swenson v. Sullivan, 876 F.3d 683, 687 (9th Cir. 1989)).
At step one, it must be determined whether the claimant is engaged in substantial
gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity
since her alleged onset date of November 13, 2006.
At step two, it must be determined whether claimant suffers from a severe
impairment. The ALJ found that Petitioner’s morbid obesity, bilateral knee osteoarthritis
with pain, hypertension, and history of congestive heart failure are “severe” within the
meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found that Petitioner did not have an impairment or combination of
impairments that meets or equals the criteria for the listed impairments. If a claimant’s
impairments or combination of impairments do not meet or equal a listing, the
Commissioner must assess the residual functional capacity (“RFC”) and determine at step
four whether the claimant has demonstrated an inability to perform past relevant work.
At step four, the ALJ found Petitioner was able to perform some but not all of her
past relevant work. He found that she was able to perform her past relevant work as a
MEMORANDUM DECISION AND ORDER - 3

timekeeper (sedentary, semi-skilled), desk clerk (light, semi-skilled), and auditor
(sedentary, semi skilled) “except for limitation to standing/walking for 4-6 hours and
sitting for 8 hours in an 8 hour day, inability to stand for a prolonged period, and
limitation to occasional stooping, crouching, crawling, climbing, kneeling and balancing.”
AR 18.
If a claimant demonstrates an inability to perform past relevant work, the burden
shifts to the Commissioner to demonstrate at step five that the claimant retains the
capacity to make an adjustment to other work that exists in significant levels in the
national economy, after considering the claimant's residual functional capacity, age,
education and work experience. Here, having found Petitioner not disabled at step four,
the ALJ did not proceed to step five.
III.
Standard of Review
The Petitioner bears the burden of showing that disability benefits are proper
because of the inability “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment 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); See 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th
Cir. 1971). An individual will be determined to be disabled only if her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her age, education, and work experience, to engage in any other kind
MEMORANDUM DECISION AND ORDER - 4

of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Social Security
Commissioner if the decision is supported by substantial evidence and is not the product
of legal error. 42 U.S.C. § 405(g); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999);
DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than
a preponderance, Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist which supports the
petitioner’s claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health and Human Servs., 44
F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be conclusive. Id. It is well-settled that if there
is substantial evidence to support the decision of the Commissioner, the decision must be
upheld even when the evidence can reasonably support either affirming or reversing the
Commissioner’s decision, because the Court “may not substitute [its] judgment for that of
the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
In reviewing a case under the substantial evidence standard, the Court may
MEMORANDUM DECISION AND ORDER - 5

question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard self-serving
statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ
carefully considers the subjective complaints but provides adequate reasons for rejecting
them, the ALJ’s well-settled role as the judge of credibility will be upheld as based on
substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).
IV.
Discussion
Petitioner raises the single issue that the ALJ failed to consider the effects of
obesity with all of her other medical impairments of bilateral knee osteoarthritis with
pain, hypertension, and history of congestive heart failure. She requests a remand for
proper application of Social Security Ruling 02-1p regarding the evidence of obesity in
this case.
A.

Social Security Ruling 02-1p (2002)
On October 25, 1999, the Commissioner deleted listing 9.09, Obesity, from the

Listing of Impairments in 20 C.F.R., subpart P, appendix 1 (“the listings”). Social
Security Ruling 02-1p (2002), 2002 WL 34686281 at *1 is a ruling that provides
guidance for evaluations of disability based on obesity since it is no longer a listed
impairment under Titles II and XVI of the Social Security Act. Id. The SSR emphasizes
that obesity is still a “medically determinable impairment,” instructs adjudicators “that the
combined effects of obesity with other impairments can be greater than the effects of each
MEMORANDUM DECISION AND ORDER - 6

of the impairments considered separately,” and further instructs adjudicators “to consider
the effects of obesity not only under the listings but also when assessing a claim at other
steps in the sequential evaluation process, including when assessing an individual’s
residual functional capacity.” Id.
The SSR also discusses the numerous ways in which obesity impacts physical and
mental health as well as the situations in which obesity will be considered. Id. ¶ 2 at *3.
It directs that a finding at Step 2 of the sequential process that obesity is a severe
impairment should be made when either “alone or in combination with another medically
determinable physical or mental impairment(s), it significantly limits an individual’s
physical or mental ability to do basic work activities.” Id. ¶ 6 at *4.
A determination that an individual has an impairment or combination of
impairments that meets or medically equals one of the listed impairments will be made
when (1) “he or she has another impairment that, by itself, meets the requirements of a
listing;” (2) “there is an impairment that, in combination with obesity, meets the
requirements of a listing;” (3) “obesity, by itself, is medically equivalent to a listed
impairment” (e.g., when obesity causes inability to ambulate effectively it may substitute
for major dysfunction of a joint); and (4) “ an individual has multiple impairments,
including obesity, no one of which meets or equals the requirements of a listing, but the
combination of impairments is equivalent in severity to a listed impairment” (e.g., when
“the combination of a pulmonary or cardiovascular impairment and obesity has signs,
symptoms, and laboratory findings that are of equal medical significance to one of the
MEMORANDUM DECISION AND ORDER - 7

respiratory or cardiovascular listings.”). Id. ¶ 7 at *5. Significantly, the SSR specifically
notes that “[o]besity in combination with another impairment may or may not increase the
severity or functional limitations of the other impairment.” Id.
Finally, the SSR states that obesity may cause limitations on exertional functions;
postural functions; the ability to manipulate hands and fingers; the ability to tolerate
extreme heat, humidity, or hazards; and may also have an effect on “an individual’s
ability to perform routine movement and necessary physical activity within the work
environment” or “the ability to sustain a function over time.” Id. ¶ 8 at *6. The SSR
notes that “[t]he combined effects of obesity with other impairments may be greater than
might be expected without obesity.” Id. (emphasis added). Whenever obesity is found to
be an impairment, any functional limitations resulting from the obesity must be
considered in the RFC assessment along with any limitations from other identified
impairments. Id. ¶ 9.
B.

Hearing
At the hearing before the ALJ, Petitioner’s counsel argued that the evidence

supported a finding that both Petitioner’s left and right knees met a listing of impairment
pursuant to 1.02A. AR 28-30. He did not refer to any other impairments or mention
obesity in his opening remarks. The vocational expert then testified that Petitioner could
perform past relevant work as an auditor, time keeper, and desk clerk. AR 32-34. He
further testified that she could perform those jobs with limitations of standing or walking
four to six hours in an eight hour day, no prolonged standing, lifting 20 pounds frequently
MEMORANDUM DECISION AND ORDER - 8

and occasionally, moderate posture limitations occasionally, a sit-stand option, and the
need to get up occasionally for pain relief. AR 34. Petitioner’s counsel did not ask any
questions of the vocational expert. AR 35.
When examining Petitioner at the hearing, Petitioner’s counsel questioned her
about her weight issues, her difficulties losing weight, and her doctor’s attempts to find a
cause. AR 46-47. He asked if her weight was related to her shortness of breath. She
replied that her shortness of breath issues started out with pneumonia which progressed to
congestive heart failure, but “I can walk and I feel like I’m out of breath so I don’t know
if it’s my weight.” AR 47. That was the extent of the questions, testimony, or argument
about Petitioner’s weight and its possible effect on her other health issues.
C.

ALJ Decision
Despite the lack of focus at the hearing on obesity as a contributing factor to

Petitioner’s other conditions, the ALJ found that “morbid obesity” was one of several
severe impairments. AR 17. However, he further found that none of the conditions met a
listing either alone or in combination with other impairments. AR 18. In making the
findings, he considered the “entire record” and “all symptoms.” Id. That record included
numerous assessments and medical records that included reference to Petitioner’s
“obesity” and “morbid obesity,” several of which the ALJ cited in his decision:
consultative examiner Jennifer King, M.D.’s February 17, 2007 assessment (AR 19, 271),
state agency medical consultant David Rand, M. D.’s April 2, 2007 report (AR 19, 282),
and state agency medical consultant Erika Wavak, M.D.’s February 20, 2007 report (AR
MEMORANDUM DECISION AND ORDER - 9

19, 294). The ALJ also noted that morbid obesity, among other conditions, had been
assessed in July and August 2005 and diagnosed, among other conditions, in January
2006. AR 19. Although not specifically referenced by the ALJ, obesity was noted in
several chart notes.
Most significantly, the functional assessment portion of Dr. King’s consultative
report cited and relied upon by the ALJ, was based in part on Petitioner’s “morbid
obesity.” AR 271. Dr. King found:
The number of hours that the claimant could be expected to
stand and/or walk in an eight-hour workday would be limited
to about 4-6 hours given the history of congestive heart failure
and morbid obesity, and subjective knee pain with prolonged
standing. This could be improved with weight loss, of course,
as well as an assistive device for reducing pain for appropriate
conditions . . . . There are moderate postural limitations on
occasional basis, considering the claimant’s morbidly obese
stature, as well as her congestive heart failure.
AR 271 (emphasis added).
Dr. King also noted that “The claimant’s range of motion testing spine and other
major joints was full, with what could be expected secondary to her morbid obesity” and
that “straight leg raising was within normal limits, considering her obese stature.” AR
270.
Dr. Rand considered “morbid obesity” as a secondary diagnosis when performing
his RFC assessment. AR 282. He noted Petitioner’s height and weight and then
commented “[s]low but steady gait without the use of any assistive devices. No balance
or coordination problems.” AR 282-83. He also noted that “peripheral joints ranges of
MEMORANDUM DECISION AND ORDER - 10

motions are normal” and “motor strength is normal.” AR 283. He concluded that
Petitioner could stand/walk for 6 hours and sit for 4 hours. AR 283.
Dr. Wavak considered “obesity” as one of her primary diagnoses. AR 294. She
concluded that Petitioner should be limited to “4 hours stand and walk to prevent
exacerbation of symptoms with OA [osteoarthritis] and obesity.” AR. 295 (emphasis
added). She cited certain postural limitations “to prevent injury and exacerbation of
symptoms.” AR 296. She concluded, in part, that Petitioner’s “gait was steady and
without assistive device” and that “ROM [range of motion] normal within limits for
obesity.” AR 301.
D.

Discussion
Petitioner’s argument is that the ALJ failed to consider the effects of obesity with

all of her other medical impairments. She does not state at which step the ALJ failed to
do so. She does not challenge the finding that her impairments or combination of
impairments do not meet or equal a listing. She does not indicate whether she believes
that obesity in connection with one or more of her other impairments equals a specific
listing.
The record is replete with diagnoses of and references to Petitioner’s obesity.
Many of those records were cited by the ALJ in his decision. He found all of Petitioner’s
impairments to be severe except for her mental impairment of depressive disorder. AR
17. Then, after considering “all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objection medical evidence and other
MEMORANDUM DECISION AND ORDER - 11

evidence” and considering “opinion evidence,” the ALJ weighed the evidence and found
that Petitioner had the RFC to perform light work except for the limitations described
above. AR 18-21. He specifically relied on the medical opinion of Dr. King finding it
“fully credible based upon supportability with medical signs and laboratory findings,
consistency with the record, and area of specialization.” AR 20. The ALJ’s very reliance
on three functional assessments that had noted and considered the effects of obesity
establishes that he considered them as well.
Obesity is to be considered in determining whether (1) the individual has a
medically determinable impairment; (2) the individual’s impairment is severe; (3) the
individual’s impairment meets or equals the requirements of a listed impairment; and (4)
the individual’s impairment prevents him or her from doing past relevant work and other
work that exists in significant numbers in the national economy. SSR 02-1p ¶ 3.
As directed by the SSR, the ALJ considered Petitioner’s obesity when finding that
her obesity was a medically determinable impairment as well as a severe impairment thus
complying with the first two requirements of the SSR. Ninth Circuit case law reveals that
the ALJ adequately met the third and fourth requirements as well.
In Burch v. Barnhart, a claimant argued that the ALJ failed to properly consider
her obesity in the sequential process, failed to consider the interactive effects of obesity
on her other impairments, and failed to consider the combined effect of those
impairments. 400 F.3d 676, 681 (9th Cir. 2005).
In Burch, when arguing specifically that the ALJ had not considered obesity in
MEMORANDUM DECISION AND ORDER - 12

determining whether she met or equaled a listing impairment, the court noted that the SSR
provides that the ALJ will not make assumptions about the severity or functional effects
of obesity combined with other impairments because it may or may not increase the
severity. Id. (citing SSR 02-01p) (emphasis added). Rather the ALJ is to look to the case
record when making the determination. Id. The court then found that the claimant failed
to meet her initial burden of proving a disability because she did not identify which listing
she believed she met or equaled and did not present any evidence to support the
diagnosis and finding of a listed impairment as required by 20 C.F.R. § 404.1525(d). Id.
at 683 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). The court also
noted that the ALJ is not required to discuss the combined effects of impairments or
compare them to any listing unless presented with evidence to establish equivalence. Id.
(citing Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001)).
Here, Petitioner’s counsel argued that her knee impairment alone – without
reference to obesity – met a listing. His attempt to tie Petitioner’s difficulty breathing to
her obesity through testimony at the hearing failed and he did not identify a listing that he
believed Petitioner met or equaled when considering her obesity. Therefore, Petitioner
failed to meet her initial burden. The ALJ considered obesity when determining that
Petitioner did not meet a listing, but he was not required to discuss the combined effects
of her impairments or compare them to any listing. More to the point, as in Burch,
Petitioner here “did not present any testimony or other evidence at her hearing that her
obesity impaired her ability to work.”
MEMORANDUM DECISION AND ORDER - 13

Finally, the ALJ adequately considered Petitioner’s obesity when determining
whether her impairments prevent her from doing past relevant work. SSR 02-1p ¶ 3;
SSR 96-8p.

Like the ALJ in Burch, the ALJ here cited medical records noting

Petitioner’s obesity and relied on functional assessments that included references to
obesity and the impact on her knee and congestive heart failure impairments. After
weighing the evidence, he essentially adopted Dr. King’s functional assessment
limitations and found that Petitioner had the RFC to perform her past sedentary and light
work with limitations but not the RFC to perform her past medium work. He adequately
considered obesity in that determination. See Burch, 400 F.3d at 684 (finding ALJ
acknowledged that physicians’ notes indicated weight gain and that she was “somewhat
obese,” recognized that the obesity likely contributed to her back issues, and found an
RFC to perform a less than full range of light work with certain limitations).
Furthermore, as in Burch, there is no evidence of any functional limitations resulting from
her obesity that the ALJ failed to consider. Id.
V.
Conclusion
Based on its review of the entire record, the Court finds that the Commissioner’s
decision is supported by substantial evidence and is not the product of legal error.
Therefore, the Commissioner’s decision finding that the Petitioner is not disabled within
the meaning of the Social Security Act will be affirmed.
ORDER
MEMORANDUM DECISION AND ORDER - 14

Based upon the foregoing, the Court being otherwise fully advised in the premises,
it is hereby ORDERED that the Commissioner’s decision finding that the Petitioner is
not disabled within the meaning of the Social Security Act be AFFIRMED and that the
petition for review be DISMISSED.
DATED: July 18, 2012

Honorable Mikel H. Williams
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 15