Sarian v. Commissioner of the Social Security Administration

Filing 22

MEMORANDUM OPINION AND ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge REVERSES the Commissioner's decision and REMANDS for further administrative findings. Signed by Magistrate Judge Shon T. Erwin on 7/31/18. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WENDY A. SARIAN,
Plaintiff,
v.
NANCY BERRYHILL,
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-18-34-STE

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
application for supplemental security income under the Social Security Act. The
Commissioner has answered and filed a transcript of the administrative record
(hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court REVERSES the
Commissioner’s decision and REMANDS for further administrative findings.
I.

PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

application for benefits. Following an administrative hearing, an Administrative Law Judge
(ALJ) issued an unfavorable decision. (TR. 82-95). The Appeals Council denied Plaintiff’s

request for review. (TR. 1-4). Thus, the decision of the ALJ became the final decision of
the Commissioner.
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§ 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since July 31, 2014, her application date. (TR. 84). At step two, the ALJ
determined Ms. Sarian had the following severe impairments: history of rheumatoid
arthritis and fibromyalgia; asthma; obesity; bipolar disorder with borderline traits; and
post-traumatic stress disorder. (TR. 84). At step three, the ALJ found that Plaintiff’s
impairments did not meet or medically equal any of the presumptively disabling
impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 85).
At step four, the ALJ concluded that Ms. Sarian retained the residual functional
capacity (RFC) to:
[L]ift and/or carry 20 pounds occasionally and 10 pounds frequently, stand
and/or walk at least 6 hours in an 8-hour workday, sit for at least 6 hours
in an 8-hour workday with normal breaks, avoid concentrated exposure to
such things as dust or fumes, and limited to simple, repetitive tasks and
relate to supervisors and coworkers only superficially and not work with the
public.
(TR. 86). With this RFC, the ALJ concluded that Ms. Sarian could not perform her past
relevant work. (TR. 94). Thus, at the hearing, the ALJ presented the limitations set forth
in the RFC to a vocational expert (VE) to determine whether there were other jobs in the
national economy that Plaintiff could perform. (TR. 134-135). Given the limitations, the
VE identified two jobs from the Dictionary of Occupational Titles. (TR. 136). The ALJ
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adopted the testimony of the VE and concluded at step five that Ms. Sarian was not
disabled based on her ability to perform the identified jobs. (TR. 95).
III.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final “decision to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
IV.

ISSUES PRESENTED
On appeal, Plaintiff alleges: (1) error in the consideration of her obesity and (2) a

lack of substantial evidence to support the RFC.
V.

OBESITY
As alleged by Ms. Sarian, the ALJ failed to adequately consider the effects of her

obesity when assessing the RFC.
A.

ALJ’s Duty to Consider Obesity

Social Security Ruling 02–1p states that the effects of obesity must be considered
throughout the sequential evaluation process. See Policy Interpretation Ruling Titles II
and XVI: Evaluation of Obesity, 2000 WL 628049 at *1, *3 (Sept. 12, 2002) (SSR 02-1p).

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At step two, obesity will be found to be a “severe” impairment when, alone, or in
combination with another medically determinable impairment, it significantly limits an
individual’s physical or mental ability to do basic work activities. Id. at *4. At step three,
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.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A, 1.00(Q).
At step four, when assessing an individual’s RFC, the ALJ “must consider any
additional and cumulative effects of obesity.” Id. For example, fatigue may affect an
obese individual’s ability to sustain work activity and the combined effects of obesity with
other impairments might be greater than may be expected without obesity. SSR 02-1p at
*6. However, “[o]besity in combination with another impairment may or may not increase
the severity or functional limitations of the other impairment.” Id. Therefore,
“[a]ssumptions about the severity or functional effects of obesity combined with other
impairments [will not be made],” and the ALJ “will evaluate each case based on the
information in the case record.” Id.
In conjunction with assessing the effects of obesity, the ALJ must “explain how he
reached his conclusions on whether obesity caused any physical or mental limitations.”

Baker v. Barnhart, 84 F. App’x 10, 14 (10th Cir. 2003) (internal quotation marks omitted).

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See DeWitt v. Astrue, 381 F. App’x 786 (10th Cir. 2010); Hamby v. Astrue, 260 F. App’x
108 (10th Cir. 2008); But see Smith v. Colvin, 625 F. App’x 896 (10th Cir. 2015).1
B.

Error in the ALJ’s Consideration of Sarian’s Obesity

Various medical records document Ms. Sarian’s height at 5’2” and her weight
between 251 and 264 pounds. (TR. 19, 27, 41, 52, 104, 107, 111, 294, 425, 428, 431,
436, 439, 442, 446, 450, 456, 460, 464, 467, 470, 473, 477, 480, 483, 486, 489, 492,
534, 621, 638, 660, 688). Ms. Sarian’s height and weight translated to a body mass index
(BMI) ranging between 46.1 and 48.3—levels which are consistent with “extreme”
obesity, which the SSA defines as “representing the greatest risk for developing obesityrelated impairments.” SSR-02-1p at *2. In her disability paperwork, Plaintiff had noted
“difficulties walking” and at the hearing, Ms. Sarian testified to suffering “joint stiffness”
from her rheumatoid arthritis, which prevented her from doing housework, required help
from her roommate in getting up each morning, and sometimes required the use of a
cane which she had been prescribed. (TR. 127-129, 341).
In addition to her obesity, Plaintiff had been diagnosed with chronic rheumatoid
arthritis2 and her pain specialist had noted: (1) that Plaintiff’s pain was “associated with
inactivity and obesity” and (2) that Ms. Sarian “displayed pain upon arising from a seated

In Smith, unlike the Baker, DeWitt, and Hamby cases, all unpublished, the Court found the ALJ’s
discussion of claimant’s obesity adequate, stating that it declined to impose a requirement on the
ALJ to “note the absence of any evidence that her obesity resulted in additional functional
limitations or exacerbated any other impairment.” Smith at 899. Although Smith is more recent,
it provides little in the way of detailed guidance, and in the instant case, unlike Smith, the record
did contain evidence that Plaintiff’s obesity had impacted her ability to walk. See infra. Thus, the
undersigned finds the earlier cases persuasive.
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See TR. 544, 560, 575, 581, 641.

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position and transitioning through the first few steps of ambulation.” (TR. 42, 105, 108,
111, 436, 443, 457, 461, 468, 471, 474, 477-478, 480, 492, 658, 661).
Upon the classification of “extreme” obesity, the ALJ was required “to give
adequate consideration to the effect of [Plaintiff’s] obesity in combination with her other
severe impairments.” Id. at *6; see 20 C.F.R. § 416.920(a)(4)(ii), (c), (e), (g); see also

Grotendorst v. Astrue, 370 F. App’x 879, 883 (10th Cir. 2010) (noting that “all medically
determinable impairments, severe or not, must be taken into account at [the] later
steps.”) (emphasis in original); 20 C.F.R. § 416.945(a)(2) (requiring that all medically
determinable impairments be considered when assessing the RFC). The ALJ failed to fulfill
his duty.
In summarizing the medical evidence to assess Plaintiff’s subjective allegations,
the ALJ mentioned Plaintiff’s weight eight times. In doing so, the ALJ noted Ms. Sarian’s
weight and BMI as recorded at various medical appointments. (TR. 90-92). The ALJ also
noted that at these various appointments, Ms. Sarian suffered from chronic low back pain,
reduced range of motion in her lumbar spine, and pain upon rising from a seated position.
(TR. 90-92).
For two reasons, the Commissioner contends that the ALJ’s consideration of
Plaintiff’s obesity was adequate, but neither argument has merit.
First, Ms. Berryhill states: “[T]he ALJ connected Plaintiff’s obesity with her
particular symptoms and resulting functional abilities.” (ECF No. 19:12). This statement
refers to the ALJ’s acknowledgement of Plaintiff’s weight and BMI and her difficulties with
low back pain and reduced range of motion. (ECF No. 19:12). However, contrary to

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Defendant’s statement that the ALJ “connected Plaintiff’s obesity with her particular
symptoms and resulting functional abilities,” the ALJ did no such thing. Instead, the ALJ
simply recited findings as set forth in various medical records without assessing whether
the obesity had caused any particular limitations or functional loss. This omission was
especially critical in light of: (1) Plaintiff’s rheumatoid arthritis, which the ALJ had also
acknowledged as severe,3 (2) the evidence documenting Ms. Sarian’s difficulties in
walking4 and (3) the SSA’s statement that “An [obese] individual may have limitations in
. . . walking[.]” SSR 02-1p at *6; see also SSR 02-1p at *6 (“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 weight-bearing joint may
have more pain and limitation than might be expected from the arthritis alone.”).
Second, Defendant argues that the ALJ adequately considered Ms. Sarian’s obesity
because he allowed for a more restrictive RFC than two agency physicians who had
concluded that Ms. Sarian could perform “medium” work, “not further limit[ed]” by pain
and obesity. (ECF No. 19:13); (TR. 152, 167). In doing so, Ms. Berryhill cites a statement
from the ALJ which he made while evaluating the state agency physicians opinions, that:
“[t]ogether [Plaintiff’s] impairments would more reasonably limit her to light exertion.”
(ECF No. 19:12) (citing TR. 94). Although Defendant accurately quotes the ALJ, and the

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See TR. 84. At step two, the ALJ acknowledged a “history” of rheumatoid arthritis as a severe

impairment, but the records indicate that Ms. Sarian had been diagnosed with chronic rheumatoid
arthritis during the period of disability. See supra n. 1.

(TR. 42, 105, 108, 111, 127-129, 341, 436, 443, 457, 461, 468, 471, 474, 477-478, 480, 492,
658, 661).
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agency physicians had opined that Plaintiff could perform medium work not limited by
pain and obesity, the ALJ never mentioned the obesity at all in discounting the agency
opinions and the Court cannot assume that the ALJ had done so. See TR. 94. Thus, the
Court rejects Ms. Berryhill’s second argument as an improper post hoc rationale. See

Haga v. Astrue, 482 F.3d 1205, 1207 (10th Cir. 2007) (“[T]his court may not create or
adopt post-hoc rationalizations to support the ALJ’s decision that are not apparent from
the ALJ’s decision itself.”); Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)
(the Court should not “substitute [its] judgment for that of the Commissioner.”).
C.

Summary

Ms. Sarian is classified as “extremely obese.” The ALJ acknowledged as much, by
concluding that her obesity was severe at step two. Accordingly, the ALJ was required to
thereafter consider if and how Plaintiff’s obesity might affect her functional abilities, both
alone, and in combination with her rheumatoid arthritis or other impairments. But the ALJ
never acknowledged the standard for evaluating obesity and apart from reciting Plaintiff’s
height and weight, and various medical findings, he never connected the obesity with
any findings or assessed the impact of Plaintiff’s obesity as required. On remand, the ALJ
should evaluate Plaintiff’s obesity under SSR 02-1p and make specific findings regarding
the impairment’s effect on the RFC.
VI.

PLAINTIFF’S REMAINING ALLEGATION
As a second point of error, Ms. Sarian alleges that the RFC for light work lacked

substantial evidence. (ECF No. 16:11-15). But the RFC could be affected following
reconsideration of Plaintiff’s obesity. Accordingly, the Court need not consider this

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argument. See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004) (“We will not
reach the remaining issues raised by claimant because they may be affected by the ALJ’s
resolution of this case on remand.”).
ORDER
Having reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties,
the undersigned magistrate judge REVERSES the Commissioner’s decision and
REMANDS for further administrative findings.
ENTERED on July 31, 2018.

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