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Smith v. Berryhill

United States District Court, W.D. Oklahoma

July 5, 2018

NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         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 applications for disability insurance benefits and 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 AFFIRMS the Commissioner's decision.


         Initially and on reconsideration, the Social Security Administration denied Plaintiff's applications for benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 15-28). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.


         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. §§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 31, 2012, her alleged onset date. (TR. 17). At step two, the ALJ determined Ms. Smith had the following severe impairments: obesity; fibromyalgia; parenchymal disease; and asthma. (TR. 18). 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. 21).

         At step four, the ALJ concluded that Ms. Smith retained the residual functional capacity (RFC) to:

[P]erform a modified range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift and carry 20 lbs. occasionally and 10 lbs. frequently; stand and walk six hours in an eight-hour workday; and sit six hours in an eight-hour workday. She can frequently stoop, kneel, crouch, and crawl. The claimant must avoid more than occasional exposure to extreme cold, vibration, and pulmonary irritants.

(TR. 21-22). At step four, the ALJ concluded that Plaintiff had no past relevant work. (TR. 25). Accordingly, the ALJ proceeded to step five. In doing so, the ALJ presented several limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 70). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 70). The ALJ adopted the testimony of the VE and concluded that Ms. Smith was not disabled based on her ability to perform the identified jobs. (TR. 27).


         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).


         On appeal, Plaintiff alleges error: (1) at step two, (2) in the consideration of her obesity, and (3) in the consideration of an opinion from a Physician's Assistant (PA).


         At step two, the ALJ concluded that Ms. Smith suffered from severe impairments involving: obesity; fibromyalgia; parenchymal disease; and asthma. (TR. 18). Ms. Smith alleges that the ALJ erroneously failed to find “severe” impairments involving hypertension, diabetes, and low back and joint pain. (ECF No. 19:18-21). The Court disagrees.

         “Once an ALJ finds that a claimant has at least one severe impairment, he does not err in failing to designate other disorders as severe at step two, because at later steps the agency will consider the combined effect of all the claimant's impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.” Barrett v. Astrue, 340 Fed.Appx. 481, 484 (10th Cir. 2009) (internal citation omitted). Because the ALJ found Plaintiff had at least one severe impairment, that “was all the ALJ was required to do in that regard.” Oldham v. Astrue, 509 F.3d 1254, 1256- 1257 (10th Cir. 2007). Consequently, the undersigned “can easily dispose of” Plaintiff's step-two challenge. Oldham, 509 F.3d at 1256; see also Brescia v. Astrue, 287 Fed.Appx. 626, 629 (10th Cir. 2008) (“Once an ALJ has found that a claimant has at least one severe impairment, a failure to designate another disorder as ‘severe' at step two does not constitute reversible error....”).


         Ms. Smith contends that the ALJ failed to properly analyze Plaintiff's obesity and consider the effects of the impairment throughout the sequential evaluation process, as required by Social Security Ruling (SSR) 02-1p. (ECF No. 19:16-18). SSR 02-1p requires an ALJ to consider the effects of obesity when assessing the RFC, including the fact that “the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately.” SSR 02-1p, 2000 WL 628049, at *1 (Sept. 12, 2002). Thus, 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. at *6. According to Ms. Smith, the ALJ: (1) provided an improper rationale in discounting the obesity and (2) failed to assess certain limitations related to the impairment. (ECF No. 19:16-18). Neither argument has merit.

         First, Ms. Smith criticizes the ALJ's acknowledgment and discussion of Plaintiff's testimony regarding her obesity. At the hearing, Plaintiff testified: (1) her obesity “affect[ed] her] breathing” and (2) her bones “felt like they [were] grinding” when she walked, which she attributed to her weight. (TR. 62). The ALJ acknowledged the testimony, but found that Plaintiff's statements concerning the “intensity, persistence, and limiting effects” of the symptoms she described to be “not entirely consistent with the medical evidence and other evidence in the record.” (TR. 23). In so doing, the ALJ noted:

The claimant is also obese, with a BMI generally in the mid-to-upper 30s. Treatment providers have consistently emphasized the claimant's need to diet, exercise, and lose weight. The claimant testified that she has made unsuccessful attempts to lose weight and that she ...

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