Smith v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Brenda S. Smith. It is RECOMMENDED that the decision of the Commissioner be reversed and that this action be remanded for further consideration of plaintiff's obesity consistent with SSR 02-01p. Objections to R&R due by 9/19/2014. Signed by Magistrate Judge Norah McCann King on 09/02/2014. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRENDA S. SMITH,
Plaintiff,
vs.

Civil Action 2:13-cv-1080
Judge Frost
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits.

This matter is now before the

Court on Plaintiff Brenda S. Smith’s Statement of Specific Errors
(“Statement of Errors”), Doc. No. 10, Defendant’s Memorandum in
Opposition (“Commissioner’s Response”), Doc. No. 13, and Plaintiff’s
Reply, Doc. No. 14.
Plaintiff Brenda S. Smith filed her application for benefits on
March 29, 2010, alleging that she has been disabled since May 28,
2009.

PAGEID 146.

The application was denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was held on May 9, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did

George Coleman III, who testified as a vocational expert.

PAGEID 72.

In a decision dated June 22, 2012, the administrative law judge
concluded that plaintiff was not disabled from May 28, 2009, the
alleged disability onset date, through the date of the administrative
decision.

PAGEID 58.

That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined
review on September 13, 2013.

PAGEID 30.

Plaintiff was 46 years of age on the date of the administrative
law judge’s decision.

See PAGEID 58, 146.

Plaintiff has at least a

high school education, is able to communicate in English, and has past
relevant work as a cook.

PAGEID 55.

Plaintiff meets the insured

status requirements of the Social Security Act through December 31,
2014.

PAGEID 48.

She has not engaged in substantial gainful activity

since May 28, 2009, her alleged date of onset of disability.
II.

Id.

Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of degenerative disc disease, lumbar and cervical;
carpal tunnel syndrome; and plantar fasciitis.

PAGEID 48.

The

administrative law judge also found that plaintiff’s impairments
neither meet nor equal a listed impairment and leave plaintiff with
the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b).
Specifically: The claimant can occasionally lift and carry
20 pounds; frequently lift and carry 10 pounds; push or
pull to the same extent using hand or foot controls, except
that the right hand and foot can perform not more than
frequent pushing or pulling; stand or walk about 6 hours
and sit about 6 hours in an 8 hour work day; occasionally

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climb ladders, ropes or scaffolds, and occasionally stoop,
crouch and crawl; and frequently use her right hand to
handle and finger items.
PAGEID 51.

Although this residual functional capacity would preclude

plaintiff’s past relevant work as a cook, the administrative law judge
relied on the testimony of the vocational expert to find that
plaintiff is nevertheless able to perform a significant number of jobs
in the national economy, including such jobs as cafeteria attendant,
fast food worker, and bakery worker.

PAGEID 55-57.

Accordingly, the

administrative law judge concluded that plaintiff was not disabled
within the meaning of the Social Security Act from May 28, 2009,
through the date of the administrative decision.

PAGEID 58.

III. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.

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Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

Plaintiff argues, first, that the administrative law judge
erred in failing to find obesity as a severe impairment and in failing
to consider the effects of obesity on plaintiff’s functional
abilities.

Statement of Errors, pp. 8-11.

Plaintiff also argues

that the administrative law judge failed to meet the requirements of
SSR 02-01p by failing to consider obesity in connection with
plaintiff’s other severe impairments and failing to consider the
impact of obesity in the RFC determination.

Id.; Plaintiff’s Reply,

pp. 2-6.
Social Security Ruling 02-01p, 2000 WL 628049 (Sept. 12,
2002)(“the Ruling”), explains the Commissioner’s policy and protocol
in connection with the evaluation of obesity.

“Obesity is a complex,

chronic disease characterized by excessive accumulation of body fat.”
SSR 02-01p.

The Ruling recognizes Body Mass Index (BMI) as one of the

indicia of an individual’s degree of obesity.

Id.

There are three

levels of obesity: Level I includes BMIs of 30.0-34.9, Level II
includes BMIs of 35.0-39.9, and Level III includes BMIs of 40.0 and

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higher.

Id.

“Level III, termed ‘extreme’ obesity and representing

the greatest risk for developing obesity-related impairments, includes
BMIs greater than or equal to 40.”

Id.

Obesity increases the risk of

developing diseases of the musculoskeletal body systems and sleep
apnea, and may contribute to mental impairments such as depression.
Id.
SSR 02-01p provides that, at step two of the five step
evaluation, obesity may be considered a severe impairment alone or in
combination with another medically determinable impairment.

Id.

It

further provides that the Commissioner will perform “an individualized
assessment of the impact of obesity on an individual’s functioning
when deciding whether the impairment is severe.”

Id.

The Ruling also

directs that a claimant’s obesity must be considered not only at step
two of the Commissioner’s five step evaluation process, but also at
the subsequent steps.

The Ruling provides that:

The effects of obesity may not be obvious.
For example,
some people with obesity also have sleep apnea. . . . An
assessment should also be made of the effect obesity has
upon the individual's ability to perform routine movement
and
necessary
physical
activity
within
the
work
environment.
Individuals with obesity may have problems
with the ability to sustain a function over time. . . .
[O]ur RFC assessments must consider an individual's maximum
remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis. .
. .
In cases involving obesity, fatigue may affect the
individual's physical and mental ability to sustain work
activity. This may be particularly true in cases involving
sleep apnea.
The combined effects of obesity with other impairments may
be greater than might be expected without obesity.
For
example, someone with obesity and arthritis affecting a

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weight-bearing joint may have more pain and limitation than
might be expected from the arthritis alone.
Id.

See also 20 C.F.R. § 404.1523 (“If we do find a medically severe

combination of impairments, the combined impact of the impairments
will be considered throughout the disability determination process.”).
In sum, the administrative law judge “must explain how conclusions
regarding a claimant's obesity were reached.”

Fleming v. Comm’r of

Soc. Sec., 284 F. Supp. 2d 256, 271 (D. Md. 2003).

The Ruling is

binding on all components of the Social Security Administration.

See

20 C.F.R. § 402.35(b)(1).
The administrative law judge must consider the impact of a
claimant’s obesity on her RFC.

At step five of the sequential

analysis, the burden shifts to the Commissioner to show that there are
other jobs in significant numbers in the economy that the claimant can
perform consistent with her RFC, age, education, and work experience.
See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004);
20 C.F.R. § 404.1520(a)(4)(v).

When the claimant is obese, the

administrative law judge must consider this in his assessment.

SSR

02-01p; Young v. Comm’r of Soc. Sec., 282 F. Supp. 2d 890, 897-898
(N.D. Ill. 2003).
In the case presently before the Court, the administrative law
judge’s opinion did not assess plaintiff’s obesity in the manner
contemplated by the Ruling.

The administrative law judge considered

obesity at step two of the sequential process but determined that
plaintiff’s obesity was not a severe impairment:

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The record also contains diagnoses of obstructive sleep
apnea,
obesity,
nicotine
dependence
and
depression.
However, the claimant made no allegations of symptoms or
functional limitations resultant from these impairments
when she filed for disability benefits.
Based on the
entire evidence of record, I find that these impairments
cause no more than a minimal limitation on the claimant’s
ability to perform basic work activities.
Specifically, the claimant was diagnosed with obstructive
sleep apnea and obesity in November 2010 and was prescribed
C-pap with supplemental oxygen and advised to lose weight.
This condition seems to be under good control with the CPAP
therapy as there is no further mention of it in the record
since February 2011 (Exhibit 16F).
There is also no
evidence of the claimant’s falling asleep at inappropriate
times or being unable to complete tasks due to severe sleep
deprivation caused by the claimant’s sleep apnea.
The
claimant is 5’5” tall and her weight was recorded as 269
pounds (Exhibits 15F, pp. 40-41 and 16F) representing a
body mass index (BMI) of 45.
PAGEID 49 (footnote omitted).

In a footnote, the administrative law

judge noted that “[a] person with BMI of 40.0 and above is morbidly
obese.”

Id.

The administrative law judge did not, however, consider

the impact of plaintiff’s obesity in combination with her other severe
impairments.

There is also no mention of the Ruling in the

administrative law judge’s opinion and there is no indication that the
administrative law judge considered the effects of plaintiff’s obesity
in steps three through five of the sequential evaluation.

Moreover,

given that sleep apnea, depression, and musculoskeletal impairments
were found at step two, and each is an impairment that accompanies,
compounds, or is compounded by obesity, see SSR 02-01p; Angelo v.
Comm’r of Soc. Sec., No. 2:07-cv-796, 2008 WL 3981450, at *4 (S.D.
Ohio June 19, 2008) (citing Fleming, 284 F. Supp. 2d at 270-72), the
Ruling contemplates further consideration and explanation.

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This is

especially true considering that the administrative law judge
acknowledged that plaintiff reported being fatigued and tired during
the day, gained weight due to trouble moving, and was advised to lose
weight and to increase her activity.

See PAGEID 49, 53-54.

The Commissioner argues that the administrative law judge
considered plaintiff’s obesity at every step of the sequential
process: “At step 4, the ALJ stated that she [sic] considered the
exacerbating effects of Plaintiff’s obesity when deciding to give
significant weight to the opinions of the consultative physicians and
in accepting the finding that Plaintiff could perform a range of light
work.”

Commissioner’s Response, p. 12.

The Commissioner also relies

on Bledsoe v. Comm’r of Soc. Sec., 165 F. App’x 408 (6th Cir. 2006),
and argues that the administrative law judge did not need to
specifically mention obesity because he relied on the reports of
consultative examiner Robert J. Thompson, M.D., “who explicitly
considered Plaintiff’s height and weight (and level of obesity) in
finding that she could perform a range of light work.”
Response, p. 13.

Commissioner’s

These arguments are not well taken.

First, there is no mention of plaintiff’s obesity in the
administrative law judge’s RFC determination or his evaluation of the
opinion evidence.
misplaced.

Second, the Commissioner’s reliance on Bledsoe is

In Bledsoe, the United States Court of Appeals for the

Sixth Circuit held that an administrative law judge “does not need to
make specific mention of obesity if he credits an expert’s report that
considers obesity.”

Bledsoe, 165 F. App’x at 412 (citing Skarbek v.

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Comm’r of Soc. Sec., 390 F.3d 500, 504 (7th Cir. 2004)).

However, it

is not apparent here that the reports upon which the administrative
law judge relied actually considered plaintiff’s obesity.

The June

21, 2010, report of Dr. Thompson notes plaintiff’s height and weight,
but Dr. Thompson’s impression listed only small lumbar disc herniation
at L5, S1 and made no further mention of plaintiff’s obesity.

See

PAGEID 347-48.
The administrative law judge’s failure to find obesity as a
severe impairment at step two may be “legally irrelevant,” see
McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir.
2008), so long as the administrative law judge continued the
sequential analysis and considered plaintiff’s severe and non-severe
impairments in determining plaintiff’s residual functional capacity.
See id.; O’Neill v. Comm’r of Soc. Sec., No. 1:11-cv-1181, 2013 WL
1436648, at *5 (W.D. Mich. Apr. 9, 2013); Dodson v. Comm’r of Soc.
Sec., No. 1:12-cv-109, 2013 WL 4014715, at *2 (E.D. Tenn. Aug. 6,
2013).

There is no indication, however, that the administrative law

judge considered plaintiff’s obesity in determining plaintiff’s RFC,
nor did the administrative law judge give to plaintiff’s obesity the
consideration contemplated by the Ruling.
It is therefore RECOMMENDED that the decision of the Commissioner
be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this
action be REMANDED for further consideration of plaintiff’s obesity
consistent with SSR 02-01p.

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Having concluded that the action must be remanded, the Court need
not and does not address plaintiff’s remaining arguments.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

September 2, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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