James v. Commissioner of Social Security
MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 8/12/2013; re 11 REPORT AND RECOMMENDATIONS by Magistrate Judge James D. Moyer on 2/26/13; a separate order will be entered this date in accordance with this opinion.cc:counsel (TLB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:11CV-640-S
CAROLYN W. COLVIN,
Acting Commissioner or Social Security
This matter is before the court for consideration of the Findings of Fact, Conclusions of Law,
and Recommendation of the United States Magistrate Judge (“magistrate judge’s report”) concerning
this appeal of an administrative decision of the Commissioner of Social Security.
The plaintiff, David James, filed this action pursuant to 42 U.S.C. § 405(g), for review of the
decision denying his application for disability insurance and supplemental security income benefits.
He contends that the administrative law judge (“ALJ”) who heard his case failed to adequately
address whether his diabetes and obesity met or equaled a Listed Impairment under 20 CFR Pt. 404,
Subpt. P, App. 1, and failed to find James precluded from gainful employment as a result of his
The magistrate judge considered the parties’ fact and law summaries and the administrative
record (“Admin. R.”), and concluded that the ALJ committed reversible error in deciding without
analysis that James’ impairments did not meet or medically equal a Listed Impairment.
The Commissioner filed objections to the magistrate judge’s report, and James responded to
those objections. The matter is presently before the court for consideration of the magistrate judge’s
report and the objections thereto.
This court has conducted a de novo review of those portions of the report to which objection
has been made, in accordance with 28 U.S.C. § 636(b)(1)(B). The Commissioner contends that the
ALJ complied with the applicable legal standards in the case and that substantial evidence in the
record supported the decision that James was not disabled. However, this court agrees with the
magistrate judge that the failure to address the medical evidence in light of the requirements of
Listing 9.08A requires remand of the matter to the ALJ for further consideration. The court will
accept and adopt in its entirety the magistrate judge’s report.
A. Procedural History
James filed applications for disability insurance and supplemental security income benefits
in July 2009, alleging that on February 28, 2009, he became disabled as a result of diabetes mellitus,
and other conditions related to his diabetes and extreme obesity.1 After James’ applications were
denied, both initially and on reconsideration, he requested and was granted a hearing before an ALJ.
The ALJ issued an opinion in which he found that none of James’ severe impairments met or equaled
a Listed Impairment, and that James retained the residual functional capacity to perform sedentary
work, with certain restrictions, and was therefore not disabled.2 James timely requested review by
the Appeals Council. His request was denied. He then timely appealed to this court.
B. The Five-Step Evaluation Process
Admin. R. at 121-132.
See generally Admin. R. at 13-33.
In reaching a determination regarding a claimant’s disability, an ALJ is required to perform
a five-step sequential evaluation process. If the ALJ is able to find that a claimant either is or is not
disabled at a particular step, he must not go on to the next step. The five steps are as follows:3
(1) At the first step, the ALJ consider the claimant’s work activity, if any. If the claimant is
engaged in substantial gainful activity, he is not disabled.
(2) At the second step, the ALJ consider the medical severity of the claimant’s impairments.
If there exists no severe medically determinable physical or mental impairment (or
combination of impairments) that meets the duration requirement, the claimant is not
(3) At the third step, the ALJ also considers the medical severity of the claimant’s
impairments. If the claimant has an impairment that meets or equals one listed in 20
C.F.R. Pt. 404, Subpt. P, App 1, and meets the duration requirement, the ALJ must find
that the claimant is disabled
Before the ALJ goes from step three to step four, he must assess the claimant’s residual functional
capacity, which the ALJ must use at both step four and step five when evaluating the claimant’s
(4) At the fourth step, the ALJ must consider his assessment of the claimant’s residual
functional capacity and his past relevant work. If the claimant can still do his past relevant
work, the ALJ must find that he is not disabled.
(5) At the fifth and last step, the ALJ must consider his assessment of the claimant’s residual
functional capacity and his age, education, and work experience to see if the claimant can
make an adjustment to other work. A claimant who can make an adjustment to other work
is not disabled, but one who cannot is disabled.
James contends that the ALJ erred (1) at step three, when he failed to find that his diabetes
mellitus with neuropathy met or medically equaled Listing 9.08A, and (2) when he failed to consider
the effect of James’ extreme obesity when assessing his residual functional capacity.
20 C.F.R. § 404.1520(a)(4).
II. FINDINGS OF FACT
The ALJ found that Hartman suffers from the severe impairments of “obesity and diabetes
with neuropathy and edema.”4 James does not dispute this Finding (Number 3), but asserts that the
ALJ’s next finding regarding whether any of her impairments met or equaled an impairment listed
in 20 C.F.R. Pt. 404, Subpt. P, App. 1, was erroneous as a matter of law and unsupported by the
evidence in the record.
In Finding Number 4, the ALJ stated :
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1526, 406.925 and 416.926).
None of the professional medical opinions of record indicate that the
claimant’s impairments meet or equal the criteria of a listed
impairment, nor does the objective medical evidence of record
indicate as much.
There are no listing criteria in Appendix 1 specific to the evaluation
of obesity impairments. However, SSR 02-1p requires consideration
of obesity in determining whether a claimant has medically
determinable impairments that are severe, whether those impairments
meet or equal any listing, and finally in determining the residual
functional capacity. Obesity may have an adverse impact upon coexisting impairments. For example, obesity may affect the
cardiovascular and respiratory systems, making it harder for the chest
and lungs to expand and imposing a greater burden upon the heart.
Someone with obesity and arthritis affecting a weight bearing joint
may have more pain and limitation than might be expected from
arthritis alone. In addition, obesity may limit an individual’s ability
to sustain activity on a regular and continuing basis during and eighthour day, five-day week or equivalent schedule. These considerations
have been taken into account in reaching the conclusions herein at the
2nd through 5th steps of the sequential disability evaluation process,
Admin. R. at 25 (Finding No. 3).
even though no treating or examining medical source has specifically
attributed additional or cumulative limitations to the claimant’s
The ALJ did not recite any particular Listed Impairments, nor did he set forth specific criteria, or
discuss particular evidence in the record in support of his determination.
James contends that the medical record supports a finding of disability under Listing 9.08A.
He urges that he is “impaired in multiple extremities,” as evidenced by the finding of “mild mixed
sensorimotor peripheral neuropathy,” the fact that he has documented edema in both legs, and that
he stopped working “due to numbness in his right leg, swollen fingertips and numbness in his right
hand ring and pinky fingers.”6 James contends that the ALJ erred in failing to address this evidence
under the specific requirements of Listing 9.08A. The magistrate judge agreed.
In objecting to the magistrate judge’s findings, the Commissioner contends that the ALJ did
not err in concluding summarily that there was a lack of evidence to support a finding of a Listed
Impairment.7 He urges that even if the ALJ erred in not making specific findings concerning whether
the met the requirements of Listing 9.08A, the error was harmless, as his impairments do not satisfy
James has cited to medical evidence that he contends meets the criteria of 9.08A, in
attempting to counter the Commissioner’s objection. He contends that the evidence establishes that
he suffers from significant sensory disturbances in two extremities, and that his impairments
Admin R. at 26.
Admin. R. at 236, 240, 270.
The Commissioner additionally argues that the ALJ’s decision should be affirmed because James did not argue
that he met the requirements of a Listed Impairment. However, James has identified specific medical evidence that he
claims supports a finding of disability under Listing 9.08A, and argues that it was error not to address this evidence. This
case is distinguishable from Malone v. Comm’r of Social Security, No. 12-3028, 2012 WL 5974463 (6th Cir. Nov. 29,
2012), where it was clear that there was no medical evidence to support a Listed Impairment.
otherwise meet the criteria of the Listing. The Commissioner rejoins that other medical evidence
suggests that James is not significantly impaired, as required under the Listing. The magistrate judge
identified these medical findings in his report (DN 11, pp. 7-9), and concluded that the ALJ must
evaluate and compare this evidence with the Listing criteria.
As the magistrate judge noted, “we do not try the case de novo, resolve conflicts in evidence,
or decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). The
Commissioner is the finder of facts, and he must do so in this instance in addressing Listing 9.08A.
42 U.S.C. § 405(g); Reynolds v. Comm’r of Social Security, 424 Fed.Appx. 411, *415 (6th Cir.
2011)(ALJ must compare the medical evidence with the requirements for listed impairments in
considering whether the requirements are met or medically equaled).
For these reasons, the court will accept and adopt the magistrate judge’s report and order this
matter remanded for further proceedings. A separate order will be entered this date in accordance
with this opinion.
IT IS SO ORDERED.
C al R Smpo I , ei J d e
h r s . i sn I Sno u g
U i dSae Ds i C ut
nt tt ir t o r
August 12, 2013
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