Ermey v. Colvin

Filing 13

ORDER re 1 Complaint -- by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LETICIA ERMEY,

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Plaintiff,

CASE NO. 3:16-cv-05865 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 4; Consent to Proceed Before a United States

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Magistrate Judge, Dkt. 5). This matter has been fully briefed. See Dkt. 10, 11, 12.

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The ALJ provided a relatively thorough summary of the medical evidence

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connected with plaintiff’s Social Security application. However, the ALJ failed to take

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ORDER ON PLAINTIFF’S COMPLAINT - 1

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note of or discuss plaintiff’s obesity. The relevant Social Security Rulings require ALJs

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to consider claimants’ obesity when determining claimants’ severe impairments and

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claimants’ limitations, and for the remaining steps of the sequential disability evaluation

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procedure. After considering and reviewing the record, the Court concludes that the
ALJ’s error in failing to do so is not harmless, as consideration of plaintiff’s obesity

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could alter plaintiff’s residual functional capacity such that she would be found disabled.
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Therefore, this matter is reversed and remanded pursuant to sentence four of 42
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U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this
order.
BACKGROUND

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Plaintiff, LETICIA ERMEY, was born in 1991. See AR. 190-99. She has a high

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school diploma. AR. 49. Plaintiff last worked at a fast food restaurant but quit when “it

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started being painful to work there.” AR. 49-50.

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According to the ALJ, plaintiff has at least the severe impairments of “right hip
dysplasia; depression, [and] learning disorder for math, reading, expressive language, and
written expression (20 CFR 416.920(c)).” AR. 21.
At the time of the hearing, plaintiff was living in a friend’s house with “maybe

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about seven people.” AR. 47-48.
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PROCEDURAL HISTORY
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Plaintiff’s application for Supplemental Security Income (“SSI”) benefits pursuant
to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and
following reconsideration. See AR. 85, 100. Plaintiff’s requested hearing was held before

ORDER ON PLAINTIFF’S COMPLAINT - 2

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Administrative Law Judge Cynthia D. Rosa (“the ALJ”) on September 24, 2014. See AR.

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41-84. On February 27, 2015, the ALJ issued a written decision in which the ALJ

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concluded that plaintiff was not disabled pursuant to the Social Security Act since her

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application date. See AR. 16-40.

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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Did the ALJ

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reversibly err by failing to consider plaintiff’s obesity; (2) Did the ALJ reversibly err by
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failing to properly evaluate the testimony evidence; and (3) Did the ALJ reversibly err by
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improperly discrediting plaintiff without providing sufficient reasons to do so. See Dkt.
10, p. 2.

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's

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denial of social security benefits if the ALJ's findings are based on legal error or not

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supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d

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1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

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1999)).

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DISCUSSION

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(1)

Did the ALJ reversibly err by failing to consider plaintiff’s obesity?

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Plaintiff contends that the ALJ erred by failing to consider plaintiff’s obesity. See
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Dkt. 10, pp. 15-16; Dkt. 12, pp. 7-8. Defendant contends that plaintiff’s obesity did not
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have to be considered because it was not diagnosed explicitly by a doctor. See Dkt. 11, p.
18 n.4.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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Plaintiff weighed at least 185 pounds from at least May, 2012 through at least

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February, 2013. See AR. 359. At plaintiff’s Body Mass Index over 30, this indicates that

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she was obese. See e.g., http://www.nhlbi.nih.gov/guidelines/obesity/BMI/bmicalc.htm,

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last visited August 15, 2017. Although the ALJ “need not discuss all evidence
presented,” in this case, the ALJ should have explained why the “significant probative

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evidence [of plaintiff’s obesity] has been rejected.” Vincent on Behalf of Vincent v.
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Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam) (quoting Cotter v. Harris,
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642 F.2d 700, 706-07 (3d Cir. 1981)).
The Commissioner “may not reject ‘significant probative evidence’ without

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explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent,

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739 F.2d at 1395)). The “ALJ’s written decision must state reasons for disregarding

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[such] evidence.” Flores, supra, 49 F.3d at 571.

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In addition, according to Social Security Ruling, “SSR,” 02-01p, the

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Administration “consider[s] obesity to be a medically determinable impairment and

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remind[s] adjudicators to consider its effects when evaluation disability . . . . [ALJs

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are] to consider the effects of obesity not only under the listings but also when assessing a
claim at other steps of the sequential evaluation process.” 2002 SSR LEXIS 1 at *2-*3

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(2002). This, the ALJ failed to do, committing error. See id.
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Although “Social Security Rulings do not have the force of law, [n]evertheless,
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they constitute Social Security Administration interpretations of the statute it administers
and of its own regulations.” See Quang Van Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir.
1989) (citing Paxton v. Sec. HHS, 865 F.2d 1352, 1356 (9th Cir. 1988)) (internal citation

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and footnote omitted). As stated by the Ninth Circuit, “we defer to Social Security

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Rulings unless they are plainly erroneous or inconsistent with the [Social Security] Act or

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regulations.” Id. (citing Chevron USA, Inc. v. NRDC, Inc., 467 U.S. 837, 842-45 (1984);

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Paxton, supra, 865 F.2d at 1356) (footnote omitted). These Rulings regarding obesity are
not plainly erroneous or inconsistent with the Social Security Act or regulations.

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The Court also notes that according to Social Security Ruling (“SSR”) 02-1p,
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[An ALJ] will not make assumptions about the severity or functional
effects of obesity combined with other impairments. Obesity in
combination with another impairment may or may not increase the
severity or functional limitations of the other impairment. [The ALJ] will
evaluate each case based on the information in the case record.
2002 WL 34686281, 2002 SSR LEXIS 1 at *15.

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The ALJ failed to follow Social Security Rulings by not explicitly evaluating

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plaintiff’s obesity and the effect of her obesity on her other impairments, such as her right

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hip dysplasia, found to be severe by the ALJ. See AR. 21.

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Although defendant contends that the ALJ did not need to discuss plaintiff’s
obesity because it was not diagnosed explicitly by a physician, the citation provided by
defendant for this argument indicates no such thing. As noted by defendant in a footnote,
an “impairment must result from anatomical, physiological, or psychological

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abnormalities which can be shown by medically acceptable clinical and laboratory
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diagnostic techniques.” 20 C.F.R. § 1404.1508. Using a scale to determine body weight is
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a medically acceptable clinical diagnostic technique, and because it resulted in an
indication of obesity, it demonstrates an anatomical, physiological, or psychological
abnormality, as defined by the National Institute of Health. See e.g.,

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http://www.nhlbi.nih.gov/guidelines/obesity/BMI/bmicalc.htm, last visited August 15,

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2017.

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For the reasons stated, the Court concludes that the ALJ erred by failing to
consider plaintiff’s obesity when concluding that she is not disabled. The Court also
concludes that the error is not harmless.

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The Ninth Circuit has “recognized that harmless error principles apply in the
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Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
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(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
Cir. 2006) (collecting cases)). Recently the Ninth Circuit reaffirmed the explanation in

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Stout that “ALJ errors in social security are harmless if they are ‘inconsequential to the

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ultimate nondisability determination’ and that ‘a reviewing court cannot consider [an]

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error harmless unless it can confidently conclude that no reasonable ALJ, when fully

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crediting the testimony, could have reached a different disability determination.’” Marsh

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v. Colvin, 792 F.3d 1170, 1173 (9th Cir. July 10, 2015) (citing Stout, 454 F.3d at 1055-

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56). In Marsh, even though “the district court gave persuasive reasons to determine

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harmlessness,” the Ninth Circuit reversed and remanded for further administrative
proceedings, noting that “the decision on disability rests with the ALJ and the

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Commissioner of the Social Security Administration in the first instance, not with a
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district court.” Id. (citing 20 C.F.R. § 404.1527(d)(1)-(3)).
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Here, the ALJ failed to consider plaintiff’s obesity when determining plaintiff’s
residual functional capacity. And, according to a relevant Social Security Ruling:

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ORDER ON PLAINTIFF’S COMPLAINT - 6

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Obesity in combination with another impairment may or may not
increase the severity or functional limitations of the other impairment.
[The ALJ] will evaluate each case based on the information in the case
record.
2002 WL 34686281, 2002 SSR LEXIS 1 at *15. Because plaintiff’s obesity may

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“increase the severity or functional limitations of [plaintiff’s] other impairment[s], this

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Court cannot conclude with confidence that no reasonable ALJ, when fully crediting the

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testimony, could have reached a different disability determination.’” Marsh, 792 F.3d at

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1173 (citing Stout, 454 F.3d at 1055-56).

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As a result of the Court’s conclusions herein, this matter must be reversed and
remanded for further consideration of plaintiff’s obesity, in combination with her other
impairments. Although plaintiff requests remand with a direction to award benefits, the
Court concludes that the ALJ should evaluate plaintiff’s obesity, in combination with

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plaintiff’s other impairments, in the first instance and that hence, further administrative
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proceedings would serve a useful purpose. See Treichler v. Comm’r of Soc. Sec. Admin.,
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775 F.3d 1090, 1103-04 (9th Cir. 2014) (citations omitted) (remand for benefits is not
appropriate when further administrative proceedings would serve a useful purpose). On
remand, the ALJ should consider anew all of the medical evidence.
(2)

Did the ALJ reversibly err by failing to evaluate properly the
testimony evidence and plaintiff’s allegations?

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The Court already has concluded that the ALJ erred in reviewing the medical
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evidence regarding plaintiff’s obesity, and that this matter should be reversed and
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remanded for further consideration of all of the medical evidence, see supra, section 1. In
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addition, the evaluation of a claimant’s statements regarding limitations relies in part on

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the assessment of the medical evidence. See 20 C.F.R. § 404.1529(c); SSR 16-3p, 2016

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SSR LEXIS 4. Therefore, plaintiff’s testimony and statements should be assessed anew

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following remand of this matter.

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CONCLUSION
Based on the stated reasons and the relevant record, the Court ORDERS that this

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matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
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405(g) to the Acting Commissioner for further consideration consistent with this order.
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JUDGMENT should be for plaintiff and the case should be closed.
Dated this 16th day of August, 2017.

A

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J. Richard Creatura
United States Magistrate Judge

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