Lopez v. Social Security Administration

Filing 30

MEMORANDUM OPINION AND ORDER by Chief Magistrate Judge Karen B. Molzen denying 23 Motion to Remand to Agency. (mlt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

NENA CHRISTINE LOPEZ,
Plaintiff,
v.

CIV 16-0638 KBM

NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Reverse and
Remand for Rehearing with Supporting Memorandum (Doc. 23), filed January 11, 2017.
Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties
have consented to me serving as the presiding judge and entering final judgment.
Doc. 9. Having reviewed the parties’ submissions, the relevant law, and the relevant
portions of the Administrative Record, the Court will deny the Motion.
I.

Introduction
Plaintiff, who elected to appear at her administrative hearing without counsel,

contends that the Administrative Law Judge (“ALJ”) who held that hearing failed to fully
inquire into the effects of her headaches and obesity, resulting in his failure to consider
them in concluding that she is not disabled. After careful review of the record, however,
1

Effective January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of the Social
Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill is therefore substituted for former Acting Commissioner Carolyn W. Colvin as the
defendant in this suit.

the Court is confident that the ALJ considered these impairments. Even assuming he
did not, the Court finds any such error to be harmless, as Plaintiff has failed to
demonstrate any further limiting effects these impairments may impose beyond those
recognized by the ALJ.
II.

Procedural History
Plaintiff filed applications with the Social Security Administration for disability

insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act on August 3 and 31, 2010. AR at 171-78. 2 In these applications,
Plaintiff alleged two different disability onset dates: August 1, 2008, and August 3, 2010.
AR at 171, 175. Regardless, Plaintiff stopped working full-time on August 3, 2010, due
to osteoarthritis in her knees, migraines, obesity, high blood pressure, and thyroid
problems. AR at 205. Prior to claiming disability, Plaintiff worked as a receptionist at a
doctor’s office, janitor at a school, and cashier at a gas station. AR at 72-73, 206.
Plaintiff testified that she can no longer work as a cashier because of the standing and
lifting requirements of that job. AR at 72-73. However, Plaintiff continues to work parttime as an assistant librarian. AR at 66.
The agency denied Plaintiff’s claims initially and upon reconsideration, and she
requested a de novo hearing before an administrative law judge. AR at 87-116. ALJ
Barry O’Melinn held an evidentiary hearing on March 12, 2014, at which Plaintiff
appeared via video teleconference. AR at 61. Although ALJ O’Melinn advised her of her
right to be represented by counsel, Plaintiff elected to proceed on her own. AR at 62-63.

2

Documents 16-1 through 16-18 comprise the sealed Administrative Record (“AR”). The Court
cites the Record’s internal pagination, rather than the CM/ECF document number and page.

2

Ultimately, the ALJ issued an unfavorable decision on August 29, 2014. AR at
41-53. Plaintiff, now represented by counsel, submitted a Request for Review of the
ALJ’s Decision to the Appeals Council, which the Council declined on April 22, 2016.
AR at 1-7, 36-37. As such, the ALJ’s decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court now
has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R.
§ 422.210(a).
A claimant seeking disability benefits must establish that she is unable 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); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The
Commissioner must use a five-step sequential evaluation process to determine eligibility
for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 3
At Step One of the sequential evaluation process, the ALJ found that while
Plaintiff continues to work part-time as an assistant librarian, she has not engaged in

3

The Tenth Circuit recently summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333
n.1 (10th Cir. 2016):
At step one, the ALJ must determine whether a claimant presently is engaged
in a substantially gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th
Cir. 2009). If not, the ALJ then decides whether the claimant has a medically
severe impairment at step two. Id. If so, at step three, the ALJ determines
whether the impairment is “equivalent to a condition ‘listed in the appendix of
the relevant disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). Absent a match in the listings, the ALJ must
decide at step four whether the claimant's impairment prevents him from
performing his past relevant work. Id. Even if so, the ALJ must determine at
step five whether the claimant has the RFC to “perform other work in the
national economy.” Id.

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substantial gainful activity during the relevant time period. AR at 43. At Step Two, he
determined that Plaintiff has the severe impairments of “bilateral knee disorder, morbid
obesity, hypertension, hypothyroidism, back/hip pain, diabetes mellitus type 2, bipolar
panic, and post-traumatic stress disorder (‘PTSD’).” AR at 43. At Step Three, the ALJ
concluded that Plaintiff’s impairments, individually and in combination, did not meet or
medically equal the regulatory “listings.” AR at 43-44.
When a plaintiff does not meet a listed impairment, the ALJ must determine her
residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(a)(4). RFC is a
multidimensional description of the work-related abilities a plaintiff retains in spite of her
medical impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). “RFC is not the least
an individual can do despite his or her limitations or restrictions, but the most.” SSR 968P, 1996 WL 374184, at *1. In this case the ALJ determined that Plaintiff retained the
RFC to
perform sedentary work activity, as defined in 20 CFR 404.1567(a) and
416.967(a), except that she could balance, stoop, kneel, crouch, crawl,
and climb ramps/stairs only occasionally. She would need to avoid
concentrated exposure to moving machinery, hazardous machinery,
and unprotected heights. She could understand, carry out, and
remember detailed but not complex instructions and make
commensurate work-related decisions, responding appropriately to
supervision, coworkers, and work situations, deal with routine changes
in work setting, maintain concentration, persistence, and pace for up to
and including two hours at a time with normal breaks throughout the
workday.
AR at 44-45. Employing this RFC at Step Four, the ALJ determined that Plaintiff is able
to return to her past relevant work as a receptionist. AR at 53. Accordingly, the ALJ did
not proceed to Step Five, having determined that Plaintiff was not disabled from her
alleged onset date through the date of his decision, and he denied benefits. AR at 47.

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III.

Legal Standard
This Court “review[s] the Commissioner's decision to determine whether the

factual findings are supported by substantial evidence and whether the correct legal
standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting
Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is
grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “In
order to determine whether the [Commissioner’s] decision is supported by substantial
evidence, [this Court] must meticulously examine the record.” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). However, this Court “cannot reweigh the evidence or
substitute [its] judgment for the administrative law judge's.” Smith v. Colvin, 821 F.3d
1264, 1266 (10th Cir. 2016) (citation omitted).
I.

Analysis
Plaintiff argues that the ALJ committed reversible error by failing to fully explore

the facts regarding her headaches, migraines and obesity during the administrative
hearing. Doc. 23 at 4 (citing Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992)). Plaintiff quotes Musgrave for the proposition that a social security disability
hearing is nonadversarial, imparting upon an ALJ the duty to “inform himself about the
facts relevant to his decision and to learn the claimant’s own version of the facts.”
Doc. 23 at 4. The Musgrave Court went on to note that this duty “to develop the record
is heightened when a claimant is unrepresented.” Musgrave, 966 F.2d at 1374.
However, permitting an unrepresented claimant to proceed before an ALJ is not
improper. To the contrary, an ALJ will still meet his duty of inquiry in an unrepresented
case if he asks “sufficient questions to ascertain (1) the nature of a claimant's alleged

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impairments, (2) what on-going treatment and medication the claimant is receiving, and
(3) the impact of the alleged impairment on a claimant's daily routine and activities.” Id.
(citation omitted). That said, “[t]he ALJ does not have to exhaust every possible line of
inquiry in an attempt to pursue every potential line of questioning.” Hawkins v. Chater,
113 F.3d 1162, 1168 (10th Cir. 1997). “The standard is one of reasonable good
judgment. The duty to develop the record is limited to ‘fully and fairly develop[ing] the
record as to material issues.’” Id. (quoting Baca v. Dep’t of Health & Human Servs., 5
F.3d 476, 479-80 (10th Cir. 1993)).
Plaintiff posits that ALJ O’Melinn failed to adequately question her about the
impact of her migraines, headaches and obesity. She contends that this alleged error
led to the ALJ’s subsequent failure to discuss and consider her migraines and
headaches in his Step Two analysis and Step Four findings, and to his failure “to
discuss and assess the effect of [Plaintiff’s] obesity on the RFC.” See Doc. 23 at 7-9.
For the reasons that follow, the Court finds no error in the ALJ’s analysis, and so affirms
his decision as supported by substantial evidence.
First, notwithstanding the questions that Plaintiff argues the ALJ “could have”
asked her, the Court finds that ALJ O’Melinn complied with Musgrave because his
questions were broadly directed at ascertaining (1) the nature of Plaintiff’s impairments,
(2) Plaintiff’s ongoing treatment, and (3) the impact Plaintiff’s impairments have on her
ability to work. This much is clear from a close review of the hearing transcript.
After thoroughly explaining the administrative process to her, the ALJ questioned
Plaintiff about where she lives, her children, her ability to drive and her current work. AR
at 63-68. The ALJ asked Plaintiff if her medical conditions ever require her to miss work,

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to which she responded that she was out of work for a month with pleurisy and issues
with her lungs, and she will miss if her “migraine’s too bad. But usually I just deal with it
and go to work.” AR at 68. The ALJ also reviewed Plaintiff’s medical providers and
identified records that were missing from Plaintiff’s file. AR at 69-70, 75. The ALJ asked
Plaintiff about the time she missed from work, her past work, her knee problems and her
back problems. AR at 73-76. The ALJ also asked Plaintiff about “any other problems”
that affect her ability to work, to which she responded “[t]he pain just, I have the knees,
my back, I get migraines. It’s hard to concentrate with them.” AR at 76. The ALJ then
questioned the Vocational Expert. AR at 77-84. Finally, Plaintiff described her typical
day and the restrictions on her abilities due to her impairments. AR at 84-85.
While the ALJ did not specifically question Plaintiff about her migraines,
headaches and obesity, she was provided with ample opportunity to discuss the effects
those impairments have on her ability to work. When given this opportunity, Plaintiff
failed to mention any difficulty related to her headaches or obesity with regard to her
current work as an assistant librarian. AR at 67. True, Plaintiff testified that she might
occasionally miss work if her migraine is too bad, but she also testified that she usually
just deals with the symptoms and is able to work. AR at 68. Additionally, Plaintiff
explained her difficulty with lifting and standing when asked if she could return to her
work as a gas station cashier. AR at 73. Besides her knees and back, Plaintiff
mentioned no other functional limitations caused by her obesity. The Court accordingly
refuses to reverse the ALJ for failing to further explore these conditions at the hearing.

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Moreover, this Court’s meticulous review of the record shows the ALJ’s Step Two
and Four analyses to be sufficiently supported, notwithstanding his failure to further
inquire into the effects of those impairments.
A) Migraines and Headaches
As noted above, Plaintiff’s initial application for benefits asserted that she
became disabled due to, among other things, migraines. AR at 205. Plaintiff
subsequently completed a Headache Questionnaire on September 27, 2010. AR at 212.
On the Questionnaire, Plaintiff reported that she has daily headaches and migraines a
few times a month. AR at 212. Plaintiff’s headaches are brought on by “bright light,
peanuts, loud noises, [and] scretchy (sic) noises.” AR at 212. Plaintiff self-medicates
with Tylenol, and was treated once with a shot. AR at 212. Ice, darkness, quiet, and
sleep help. AR at 212. According to Plaintiff, when she has a headache she “can’t
function” because it is “hard to sit up the pressure is overwhelming.” AR at 212.
Plaintiff’s headaches last “hours occasionally a couple of days.” AR at 212.
Plaintiff also completed a Function Report on September 30, 2010. AR at 213-20.
On the Report, Plaintiff stated that sometimes it is hard to fall asleep, “especially with
headaches.” AR at 214. She also reported difficulties completing house and yard work if
she has a migraine. AR at 215. Plaintiff will not go outside if she has a migraine. AR at
217. Plaintiff’s medication list indicates that she takes Excedrin Migraine for migraines
and notes “i dont like going to the hospital for shots so i take what i can for my
migraines.” AR at 242. She also reaffirmed that she regularly treats her headaches with
Tylenol. AR at 242.

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Despite these reports and Plaintiff’s testimony, nowhere in the ALJ’s decision is
the word “migraine” mentioned, and the word “headache” only appears three times in
the course of the ALJ’s review of Plaintiff’s medical records. See AR at 41-53. Plaintiff
contends that the ALJ’s “failure to question [her] about her headaches led to his failure
to discuss and consider headaches in his step two analysis and in his step four
findings.” Doc. 23 at 7. However, the ALJ’s failure to consider Plaintiff’s migraines or
headaches at Step Two is harmless, and a close review of the record shows why the
ALJ chose not to discuss them during his RFC findings.
The Tenth Circuit has recognized that any error by an ALJ at Step Two becomes
harmless if the ALJ reaches the proper conclusion that the claimant cannot be denied
benefits conclusively at Step Two and proceeds to the next step of the evaluation
sequence. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008); Grotendorst
v. Astrue, 370 F. App'x 879, 883 (10th Cir. 2010) (unpublished) (“an error at step two of
the sequential evaluation concerning one impairment is usually harmless when the ALJ,
as occurred here, finds another impairment is severe and proceeds to the remaining
steps of the evaluation”). Accordingly, even if the ALJ erred by failing to consider her
migraines and headaches at Step Two, the Court finds any such error to be harmless
because the ALJ proceeded beyond that step and ultimately denied benefits at Step
Four.
Of course, the question remains whether the ALJ’s Step Four findings were
adequately supported. As noted above, before proceeding to Step Four, the ALJ was
required to formulate Plaintiff’s RFC. “An ALJ's RFC determination – which the ALJ then
uses at steps four and five of the sequential evaluation – must consider both severe and

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non-severe medically determinable impairments.” Grotendorst, 370 F. App'x at 883
(citing 20 C.F.R. § 404.1545(e)). Thus, even if the ALJ permissibly concluded that
Plaintiff’s migraines and headaches are not severe at Step Two, he was still required to
consider them when formulating her RFC, if warranted by the record.
Before proceeding to the record, however, the Court takes note of the deference
that the Tenth Circuit has afforded to ALJs when it comes to discussing a claimant’s
medical problems. See, e.g. Bales v. Colvin, 576 F. App’x 792 (10th Cir. 2014)
(unpublished). In Bales, the claimant contended that the ALJ “failed to consider that she
suffers from carpal tunnel syndrome, migraines, fatigue, insomnia, high cholesterol,
gastroesophageal reflux disease, and left-shoulder-impingement syndrome.” Id. at 799.
Unpersuaded, the Tenth Circuit pointed out that the ALJ
noted that, when assessing a claimant’s RFC, ‘all of the claimant’s
impairments, including impairments that are not severe’ must be
considered. . . . Further, the ALJ stated that she had ‘considered all
symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other
evidence’ . . . and that she had ‘carefully considered all of the evidence’
in finding Ms. Bales not disabled.
Id. The Tenth Circuit then recognized that an ALJ is not required to discuss every piece
of evidence and that a reviewing court should take him at his word if he says he has
considered all of the evidence. Id. (quoting Mays, 739 F.3d at 576; Wall v. Astrue, 561
F.3d 1048, 1070 (10th Cir. 2009)). Accordingly, the court concluded that “[h]ere, the ALJ
thoroughly discussed the medical evidence, and there is no indication that, despite not
expressly mentioning Ms. Bales’ other medical problems, the ALJ did not take them into
account.” Id. (emphasis added). Moreover, the court pointed out that “even if the ALJ
failed to account for all of Ms. Bales’ medical problems, Ms. Bales does not identify how

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any of these conditions, either individually or in combination, affected her functioning
during the time she was disabled. . . . In that case, any error would be harmless.” Id.
(citations omitted).
This Court reaches a similar result in this case. ALJ O’Melinn made the same
boilerplate statements that the Bales court found sufficient to comply with his duty to
review all of the evidence and account for all of Plaintiff’s conditions. See AR at 41-42,
44-45. The Court accordingly takes the ALJ at his word when he says he “considered all
[of Plaintiff’s] symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence.” AR at
45 (emphasis added). Even if the Court were not inclined to take the ALJ at his word,
the ALJ’s List of Exhibits contains Plaintiff’s headache questionnaire and all of the
records she insists the ALJ ignored in making his RFC finding. See AR at 54-58. Thus,
the Court is confident that the ALJ considered Plaintiff’s migraines and headaches when
determining that she is not disabled.
Moreover, as in Bales, Plaintiff has failed to identify how her migraines or
headaches preclude her ability to work. This renders the ALJ’s failure to explicitly
discuss them harmless. True, Plaintiff testified that her migraines make it “hard to
concentrate” and indicated that she might miss work if her migraine is too bad, but she
also testified that she “usually just deal[s] with it and go[es] to work.” AR at 68, 76. The
ALJ could have correctly concluded that Plaintiff’s migraines and headaches
accordingly had no significant effect on her RFC. As it must, the Court has meticulously
examined the record, and concludes that such a finding would be supported by
substantial evidence.

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As Plaintiff’s brief recognizes, she only complained of migraines to her medical
providers on two occasions, and the Court notes that on both of those occasions,
migraines were not Plaintiff’s chief complaint. On June 16, 2009, Plaintiff presented to
Gilbert Aragon, D.O., with a complaint of continued bilateral knee pain and “also” a
migraine headache. AR at 283. Dr. Aragon assessed Plaintiff with a migraine headache
and bilateral degenerative osteoarthritis in both knees. AR at 283. Her migraine was
treated with a Toradol injection. AR at 283.
Four years later, on November 27, 2013, Plaintiff presented to Lisa Wentling,
P.A., with complaints of nasal congestion, sneezing, sinus pressure, cough, and
intermittent sore throat that had lasted a couple of weeks and which was not responding
to over the counter cold medication. AR at 366. She also complained of “a current
severe migraine headache.” AR at 366. Plaintiff was assessed with an “Upper
Respiratory Infection, Allergic rhinitis, Migraine headache, and Hypertension.” AR at
366. Her headache was again treated with a Toradol injection. AR at 366. On December
3, 2013, Plaintiff followed up with Ms. Wentling, continuing to complain of congestion,
cough, chest pain, and hypertension. AR at 366. She was assessed with “Radicular
chest pain with exertion, Pleurisy, Uncontrolled hypertension, and Headache.” AR at
366. On December 6, 2013, Plaintiff presented to Ms. Wentling to follow up on her
uncontrolled hypertension, headache, and radicular chest pain with exertion. AR at 365.
Her headache was noted to be improved. AR at 365. Plaintiff returned to Ms. Wentling
on December 20, 2013, for a follow-up. AR at 364. She reported that her headache had
improved since her blood pressure went down. AR at 364. However, she continued to
experience bronchospasms. AR at 364. She was assessed with hypertension and

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cough-variant asthma, uncontrolled. AR at 364. By her December 30, 2013, follow-up,
Plaintiff was no longer complaining of a headache. AR at 364. Nor did she mention a
headache during a follow-up visit on February 4, 2014. AR at 363.
Plaintiff identifies no records other than these in support of her contention that
migraines or headaches affect her ability to work, see Doc. 23 at 6-7, and the Court has
found none. While the Court is sympathetic to Plaintiff’s plight in dealing with her
migraines and headaches as described in her function reports, as the Tenth Circuit has
said, “[d]isability requires more than mere inability to work without pain. To be disabling,
pain must be so severe, by itself or in conjunction with other impairments, as to
preclude any substantial gainful employment.” Gossett v. Bowen, 862 F.2d 802, 807
(10th Cir. 1988) (quoted authority omitted) (emphasis added). Simply put, Plaintiff has
failed to demonstrate that any symptoms she experience from her migraines or
headaches are severe enough to prevent her from working, and has accordingly failed
to demonstrate any harmful error from the ALJ’s failure to explicitly discuss these
impairments in his RFC analysis.
B) Obesity
The Court reaches a similar result with regard to Plaintiff’s obesity. “Obesity is a
risk factor that increases an individual’s chances of developing impairments in most
body systems. It commonly leads to, and often complicates, chronic diseases of the
cardiovascular, respiratory, and musculoskeletal body systems.” SSR 02-01p, 2002 WL
34686281, at *3. For this reason, “Social Security Ruling (SSR) 02-1p requires an ALJ
to consider the effects of obesity when assessing RFC, including the fact that ‘the
combined effects of obesity with other impairments can be greater than the effects of

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each of the impairments considered separately.’” DeWitt v. Astrue, 381 F. App’x 782,
785 (10th Cir. 2010) (quoting SSR 02-1p at *1). However, “an ALJ may ‘not make
assumptions about the severity or functional effects of obesity combined with other
impairments’ but rather, must ‘evaluate each case based on the information in the case
record.’” Id.
Plaintiff’s argument concerning her obesity is simple – she wanted “the ALJ to
explain what functional restrictions are caused by the obesity impairment,” Doc. 28 at 2,
as she claims is required by the Tenth Circuit’s unpublished decision in DeWitt. Doc. 23
at 8. Unfortunately for Plaintiff, DeWitt and subsequent case law support the ALJ’s
findings in this case.
In DeWitt, as here, the ALJ found obesity to be a severe impairment at Step Two.
Id. at 784. Although the DeWitt ALJ ultimately limited the claimant to sedentary work
with additional restrictions, the Tenth Circuit reasoned:
there [was] nothing in the [ALJ’s] decision indicating how or whether
[the claimant’s] obesity influenced the ALJ in setting those restrictions.
Rather, it appear[ed] that the ALJ’s RFC assessment was based on
“assumptions about the severity or functional effects of [DeWitt’s]
obesity combined with [her] other impairments” – a process forbidden
by SSR 02-1p.
Id. at 785. Accordingly, the Tenth Circuit remanded for proper consideration of the
claimant’s obesity in relation to her other impairments and her RFC. Id.
Dewitt is distinguishable. There, the ALJ gave “considerable weight” to a
physician’s testimony (Dr. Brahms) when formulating the claimant’s RFC. Id. at 785.
“But in doing so, the ALJ mistakenly believed that Dr. Brahms had identified obesity as
one of DeWitt’s medical conditions. In fact, Dr. Brahms offered no opinion about the
functional effects of DeWitt’s obesity . . . [h]e simply never mentioned obesity.” Id. Thus,

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the Tenth Circuit concluded that the ALJ could not rely on Dr. Brahms’ testimony to
“satisfy the duty to consider the effects of DeWitt’s obesity on her other severe
impairments.” Id.
ALJ O’Melinn did not make the same error. Rather than relying on one medical
provider, the ALJ discussed all of Plaintiff’s medical records, pointing out in multiple
instances her providers’ concern with her weight and Plaintiff’s attempts at weight loss.
See AR at 45-51. ALJ O’Melinn then set forth the standard for considering Plaintiff’s
obesity, and concluded: “[i]n the instant matter, claimant’s obesity does not indicate any
limits when standing alone. However, when taken in combination with the other
impairments, it counsels in favor of the postural and exertional limits indicated herein.”
AR at 51. Although Plaintiff argues that this statement and the ALJ’s analysis in general
were insufficient, post-DeWitt case law shows this to be untrue, as further explained
below. Moreover, Plaintiff does not identify any further limitations her obesity causes
that would preclude her from performing sedentary work. This omission proves fatal to
her claim of error.
For example, in Arles v. Astrue, 438 F. App’x 735, 740 (10th Cir. 2011)
(unpublished), the claimant argued that the ALJ “failed to include his obesity in the RFC
determination.” Id. While the Tenth Circuit found that “[t]he ALJ could have provided a
more particularized discussion of the effects of Mr. Arles’s obesity,” it ultimately deferred
to the ALJ’s assertion that the claimant’s obesity had been evaluated under the criteria
set forth in SSR 02-1p. Id. In addition to the deference it afforded to the ALJ, the Tenth
Circuit placed the burden on the claimant to show how his obesity further restricted his

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RFC. Id. (“Moreover, Mr. Arles does not discuss or cite to any evidence showing that
obesity further limited his ability to perform a restricted range of sedentary work.”).
Next, in Jimison ex rel. Sims v. Colvin, 513 F. App’x 789, 798 (10th Cir. 2013)
(unpublished), the claimant “claim[ed] error by the ALJ in finding Ms. Sim’s obesity to be
a severe impairment at step two but not including it in his RFC at step five.” Id. The
Tenth Circuit rejected this argument because “there [was] no record indication of any
functional limitations from Ms. Sim’s obesity or of any impairments possibly caused or
exacerbated by her obesity that are inconsistent with the RFC” the ALJ assigned. Id.
Then, in Smith v. Colvin, 625 F. App’x 896, 899 (10th Cir. 2015) (unpublished),
the claimant argued, as claimant does here, that “other than noting her obesity was a
severe impairment, the ALJ never analyzed or discussed her obesity, including in his
RFC analysis.” Id. The Tenth Circuit disagreed. Emphasizing that an ALJ cannot
assume a functional deficit, the court addressed the claimant’s argument thusly:
We take this to mean that for each piece of evidence the ALJ
discussed in formulating her RFC (and there were several), he was
also required to note the absence of any evidence that her obesity
resulted in additional functional limitations or exacerbated any other
impairment. We decline to impose such a requirement on the ALJ.
Id. The Tenth Circuit then again placed the burden on the claimant to show that her
obesity resulted in further limitations than the ALJ assigned in her RFC: “Ms. Smith has
not shown that her obesity alone, or in combination with other impairments, resulted in
any further limitations.” Id.
Finally, in Rose v. Colvin, 634 F. App’x 632 (10th Cir. 2015) (unpublished), the
claimant argued, as claimant does here, that “although the ALJ found her obesity to be
a severe impairment, he failed to properly consider its effects in formulating her RFC.”

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Id. at 637. The Tenth Circuit acknowledged that “[t]he ALJ did not specifically mention
obesity in the RFC determination,” but, instead, “included specific limitations and
restrictions for stooping, kneeling, and crouching.” Id. The court then placed the onus on
the claimant to show how the medical evidence supported further functional limitations.
Id. Noting that the claimant cited no such evidence, the Court held that “the factual
record does not support Ms. Rose’s position that her obesity, either alone or in
combination with other conditions, precludes her from performing a limited range of
sedentary work.” Id. (quoting Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004)).
The Court reaches the same result in this case. Here, the ALJ complied with
SSR 02-01p by discussing Plaintiff’s obesity-related medical impairments and
concluding that those impairments combined restrict her to sedentary work with
additional restrictions on her ability to balance, stoop, kneel, crouch, crawl, and climb.
AR at 44. Plaintiff has failed to demonstrate that her obesity causes any further
functional limitation that is inconsistent with the limited range of sedentary work for
which the ALJ found her to be capable of performing.
V.

Conclusion
Plaintiff has failed to demonstrate that the ALJ committed harmful, reversible,

error in this case.
Wherefore,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Reverse and Remand for
Rehearing with Supporting Memorandum (Doc. 23) is denied.

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IT IS FURTHER ORDERED that a Final Order pursuant to Rule 58 of the Federal
Rules of Civil Procedure be entered affirming the decision of the Acting Commissioner
and dismissing this action with prejudice.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

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