Wesley v. Social Security Administration
OPINION AND ORDER by Magistrate Judge Steven P. Shreder reversing and remanding the decision of the ALJ. (tmb, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
WILMA S. WESLEY,
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration, 1
) Case No. CIV-16-160-SPS
OPINION AND ORDER
The claimant Wilma S. Wesley requests judicial review of a denial of benefits by
the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g).
She appeals the Commissioner’s decision and asserts the Administrative Law Judge
(“ALJ”) erred in determining she was not disabled. For the reasons set forth below, the
Commissioner’s decision is hereby REVERSED and the case REMANDED for further
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the
Social Security Act “only if h[er] physical or mental impairment or impairments are of
On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. In
accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn W. Colvin as the
Defendant in this action.
such severity that [s]he is not only unable to do h[er] previous work but cannot,
considering h[er] 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).
Social security regulations implement a five-step sequential process to evaluate a
disability claim. See 20 C.F.R. §§ 404.1520, 416.920. 2
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might 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, 229 (1938); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
substantiality of evidence must take into account whatever in the record fairly detracts
Step One requires the claimant to establish that she is not engaged in substantial gainful activity. Step
Two requires the claimant to establish that she has a medically severe impairment (or combination of
impairments) that significantly limits her ability to do basic work activities. If the claimant is engaged in
substantial gainful activity, or her impairment is not medically severe, disability benefits are denied. If
she does have a medically severe impairment, it is measured at step three against the listed impairments in
20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant has a listed (or “medically equivalent”) impairment,
she is regarded as disabled and awarded benefits without further inquiry. Otherwise, the evaluation
proceeds to step four, where the claimant must show that she lacks the residual functional capacity
(“RFC”) to return to her past relevant work. At step five, the burden shifts to the Commissioner to show
there is significant work in the national economy that the claimant can perform, given her age, education,
work experience, and RFC. Disability benefits are denied if the claimant can return to any of her past
relevant work or if her RFC does not preclude alternative work. See generally Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).
from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also
Casias, 933 F.2d at 800-01.
The claimant was born December 2, 1967, and was forty-five years old at the time
of the administrative hearing (Tr. 47). She has a high school education, and has worked
as a cashier, short order cook, housekeeper, and poultry eviscerator (Tr. 55-56, 222). The
claimant alleges that she has been unable to work since August 18, 2010, due to
fibromyalgia, lupus, rheumatoid arthritis, diabetes, high blood pressure, and degenerative
disc disease in her lower back (Tr. 221).
On October 19, 2011, the claimant applied for supplemental security income
benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85 (Tr. 205-10).
Her application was denied. ALJ Doug Gabbard, II conducted an administrative hearing
and determined that the claimant was not disabled in a written opinion dated June 27,
2014 (Tr. 16-31). The Appeals Council denied review, so the ALJ’s written opinion is
the Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. § 416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant retained the residual functional capacity (“RFC”) perform a limited range of
sedentary work as defined in 20 C.F.R. § 416.967(a), i. e., she could lift and/or carry ten
pounds occasionally and less than ten pounds frequently; stand and/or walk about two
hours total during an eight-hour workday; sit for about six hours total during an eight-3-
hour workday; and occasionally climb, balance, stoop, kneel, crouch and crawl (Tr. 21).
The ALJ also found the claimant must be allowed to alternately sit and stand every
fifteen minutes throughout the workday in order to change positions, but without leaving
the workstation (Tr. 21). The ALJ concluded that although the claimant could not return
to her past relevant work, she was nevertheless not disabled because there was work that
she could perform in the national economy, e. g., cutter-and-paster and final assembler
The claimant contends that the ALJ erred by failing to: (i) find her obesity
qualified as medically equivalent to a Listing, (ii) properly consider her non-severe carpal
tunnel syndrome, and (iii) properly assess her credibility. Because the Court finds the
ALJ did fail to properly consider her obesity and assess her credibility, the decision of the
Commissioner must therefore be reversed and the case remanded to the ALJ for further
The ALJ determined that the claimant had the severe impairments of obesity,
osteoarthritis, bilateral degenerative joint disease with pain, lumbar disc disease,
fibromyalgia, and psoriatic arthritis, but that her diabetes, hypertension, carpal tunnel
syndrome status post surgeries, and sleep problems were non-severe (Tr. 18).
medical record reveals sporadic treatment for knee and/or leg pain prior to February 2011
(Tr. 300-12, 502-04). The imaging contained in the record includes June 2012 x-rays of
the claimant’s knees which revealed early degenerative medial and lateral compartment
joint space narrowing, and April 2013 x-rays of the claimant’s right hip and cervical
spine which were unremarkable (Tr. 375-76, 400-01).
Dr. Vittor regularly treated the claimant between February 2011 and June 2012
(Tr. 320-31, 365-82). Her assessments included diabetes, hypertension, morbid obesity,
mixed connective tissue disorder, chronic low back pain with sciatica to right lower
extremity, chronic right hip pain, asthma, diabetic neuropathy, and arthralgias/myalgias
(Tr. 320-31, 365-82). In August 2011, the claimant reported right knee pain, and Dr.
Vittor noted that she walked with a limp due to pain; her right knee was warm and tender,
with synovitis; and her ankle was slightly swollen (Tr. 322). The claimant weighed
391.60 pounds and was 67 inches tall (Tr. 320).
At a follow-up appointment on
November 29, 2011, the claimant reported neck and low back pain, and Dr. Vittor noted
cervical and lumbar percussion tenderness (Tr. 367). The same day, Dr. Vittor wrote a
letter wherein she opined that the claimant’s obesity limited her ability to walk, stand, or
climb stairs, and that she was unable to work due to her multiple health problems
(Tr. 368). On March 27, 2012, Dr. Vittor recommended that the claimant lose two
hundred pounds to reduce neuropathy, back, knee, and hip pain, and discussed nutrition
and low-impact exercise with her (Tr. 369). At a follow-up appointment on April 13,
2012, Dr. Vittor again discussed the importance of daily, low-impact exercise such as
walking, and indicated that the claimant was at high risk for early death from obesity
unless she lost weight (Tr. 374).
The same day, Dr. Vittor completed a Health
Examination Form for Choctaw Nation of Oklahoma Social Services, wherein she
indicated that the claimant’s morbid obesity, chronic neck pain, and chronic back pain
affected her work activities because it was difficult for her to walk and stand due to her
size and pain (Tr. 483). Additionally, Dr. Vittor opined that she could tolerate sedentary
work (Tr. 483).
Dr. Tummala, a rheumatologist, treated the claimant between December 2012 and
April 2014 (Tr. 422-34). At her initial appointment, Dr. Tummala noted the claimant’s
exam was strongly suggestive of psoriatic arthritis, but that she did not have any obvious
manifestations of rheumatoid arthritis (Tr. 426).
He found, inter alia, tenderness,
swelling, and reduced range of motion in her right knee; crepitus in her left knee; and
tenderness and reduced range of motion in her lumbar spine (Tr. 426). X-rays of the
claimant’s hands were unremarkable (Tr. 426).
Dr. Tummala prescribed an
immunosuppressant and recommended bariatric surgery, noting the claimant’s obesity
could be a major contributing factor to her generalized pain (Tr. 426). At a follow-up
appointment in January 2013, Dr. Tummala noted some objective improvement, but that
the claimant had persistent tenderness (Tr. 429). The claimant reported no improvement
in March 2013, and Dr. Tummala indicated that fibromyalgia appeared “more likely to be
the problem.” (Tr. 432). In April 2014, the claimant reported that her knee pain persisted
despite medication and exercise, and was interfering with her ability to ambulate
(Tr. 496-97). Dr. Tummala noted her left knee was tender and swollen with full range of
motion, and he administered steroid injections (Tr. 496-97).
From December 2012 through October 2013, the claimant regularly presented to
Dr. Stepanka Baggett for lab work, prescription refills, referrals, and/or assistance with
forms (Tr. 461-72). Dr. Baggett’s physical examinations at these visits were generally
normal, but she did note the claimant had a slow gait in October 2013 (Tr. 471). In
October 2012, January 2013, July 2013, and October 2013, Dr. Baggett completed Health
Examination Forms for Choctaw Nation of Oklahoma Social Services wherein she
opined that the claimant was unable to work due to chronic diffuse arthralgias, psoriatic
arthropathy, chronic pain, and joint stiffness (Tr. 484-87). Additionally, on December
23, 2013, Dr. Baggett wrote a letter to Choctaw Nation Health Clinic wherein she stated
that the claimant had multiple medical problems, including psoriatic arthropathy with
chronic pain, and due to such issues, had not been able to work since 2005 (Tr. 488).
Dr. Kilgore conducted a consultative physical examination of the claimant on
December 29, 2011 (Tr. 332-35). Dr. Kilgore observed that the claimant was massively
obese, appeared older than her stated age, and could get in and out of the chair, but could
not lie down on the exam table (Tr. 333). Notably, Dr. Kilgore found that the claimant
had some degree of reduced range of motion in every joint he tested, including her back,
neck, wrists, thumbs, shoulders, elbows, hips, knees, and ankles (Tr. 336-39). He found
tenderness in the claimant’s back and neck, but no spasms (Tr. 334, 336). Her wrists,
elbows, and shoulders were unremarkable except for decreased range of motion (Tr. 334,
337-38). As to the claimant’s knees, Dr. Kilgore noted minimal crepitance in her left
knee, and moderate swelling in her right knee with “significant” decreased range of
motion (Tr. 334-35). He indicated the claimant’s gait was slightly slow but stable with a
moderate right leg limp (Tr. 333).
At the most recent administrative hearing, the claimant testified as to her past
work history, her impairments, and her medical treatment (Tr. 37-64). She stated the
problems with her hands included throbbing and swelling in hot and cold temperatures,
locking up when holding something, and lack of feeling in her fingers (Tr. 50).
Additionally, she stated she could not do fine manipulation with her fingers (Tr. 54-55).
She further stated that she must alternate between sitting and standing every fifteen
minutes throughout the day, and would need to lie down for an hour or more during an
eight-hour workday, depending on the weather due to pain in her thighs (Tr. 51-53). As
to her knees, she indicated they “pop,” and that the one she had surgery on was “real
sensitive.” (Tr. 53). The claimant stated that she weighed four hundred pounds (Tr. 54).
Social Security Ruling 02-1p states that the effects of obesity must be considered
throughout the sequential evaluation process.
34686281at *1 (Sept. 12, 2002).
See Soc. Sec. Rul. 02-1p, 2002 WL
The Listing of Impairments with regard to the
Musculoskeletal System references obesity and explains that “[t]he combined effects of
obesity with musculoskeletal impairments can be greater than the effects of each of the
impairments considered separately.”
The ALJ “must consider any additional and
cumulative effects of obesity” when assessing an individual’s RFC. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Pt. A, 1.00 Musculoskeletal System, Q.
However, “[o]besity in
combination with another impairment may or may not increase the severity or functional
limitations of the other impairment.” Soc. Sec. Rul. 02-1p, 2002 WL 34686281, at *6.
Therefore, “[a]ssumptions about the severity or functional effects of obesity combined
with other impairments [will not be made],” and “[w]e will evaluate each case based on
the information in the case record.” Id.
At step two, the ALJ that found that the claimant's obesity was a severe
impairment (Tr. 18). At step three, he concluded that the claimant’s impairments did not
meet or equal a Listing, but provided no analysis whatsoever (Tr. 20-21). The ALJ did
summarize the medical evidence related to the claimant’s obesity at step three, and noted
that a treating physician and others encouraged the claimant to exercise, which he found
was an indication that the claimant was capable of at least that level of activity (Tr. 2021). At step four, the ALJ’s only reference to the claimant’s obesity was “. . . due to her
obesity, I find that a sit/stand option as defined above is reasonable.” (Tr. 29).
The ALJ recited the foregoing authorities as to obesity at step three, but failed to
connect them to the medical record in his findings at steps three and four, or determine
whether the medical evidence demonstrated any additional or cumulative effects from her
obesity. See, e. g., Fleetwood v. Barnhart, 211 Fed. Appx. 736, 741-42 (10th Cir. 2007)
(noting that “obesity is [a] medically determinable impairment that [the] ALJ must
consider in evaluating disability; that [the] combined effect of obesity with other
impairments can be greater than effects of each single impairment considered
individually; and that obesity must be considered when assessing RFC.”) [citation
omitted]; Baker v. Barnhart, 84 Fed. Appx. 10, 14 (10th Cir. 2003) (noting that the
agency’s ruling in Soc. Sec. Rul. 02-1p on obesity applies at all steps of the evaluation
sequence). This was particularly important here because Dr. Vittor repeatedly opined
that the claimant’s obesity contributed to her pain, complicated her other medical
problems, and impaired her mobility, and Dr. Tummala suspected that the claimant’s
obesity was a major contributing factor to her pain (Tr. 365, 368-69, 371-72, 374, 426,
483). Given the impact that obesity can have on the musculoskeletal, cardiovascular, and
respiratory systems, the ALJ erred in failing to address the claimant’s obesity at step four.
See Soc. Sec. Rul. 02-1p, 2002 WL 34686281, at *5. See also DeWitt v. Astrue, 381 Fed.
Appx. 782, 785 (10th Cir. 2010) (“The Commissioner argues that the ALJ adequately
considered the functional impacts of DeWitt’s obesity, given that the ALJ’s decision
recognizes she is obese and ultimately limits her to sedentary work with certain
restrictions. But there is nothing in the decision indicating how or whether her obesity
influenced the ALJ in setting those restrictions. Rather it appears 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.” ) [citation omitted].
The claimant also contends that the ALJ erred in analyzing her credibility. At the
time of the ALJ’s decision, a credibility determination was governed by Soc. Sec. Rul.
96-7p. See, e .g., Hardman v. Barnhart, 362 F.3d 676, 678 (10th Cir. 2004), quoting Soc.
Sec. Rul. 96-7p, 1996 WL 374186 (July 2, 1996). But the Commissioner issued a ruling
on March 16, 2016, which eliminated the term “credibility” and provided new guidance
for evaluating the intensity, persistence, and limiting effects of a claimant’s symptoms.
Soc. Sec. Rul. 16-3p, 2016 WL 1119029 (Mar. 16, 2016). “Generally, if an agency
makes a policy change during the pendency of a claimant’s appeal, the reviewing court
should remand for the agency to determine whether the new policy affects its prior
decision.” Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007), quoting Sloan v.
Astrue, 499 F.3d 883, 889 (8th Cir. 2007). Accordingly, the Court finds that remand for
proper analysis under the new guidance would likewise be advisable here.
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the decision of the Commissioner is therefore not supported by substantial
evidence. The decision of the Commissioner of the Social Security Administration is
accordingly hereby REVERSED and the case REMANDED for further proceedings
DATED this 22nd day of September, 2017.
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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