Opinion
Case No. ED CV 07-1103-PJW.
March 5, 2009
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income ("SSI") benefits. Plaintiff asks the Court to reverse the Agency's decision and award benefits or, in the alternative, to remand the case for further proceedings. Because the Agency's decision that Plaintiff was not disabled is supported by substantial evidence, it is affirmed.
In March 2004, Plaintiff filed an application for SSI, alleging an inability to work due to diabetes, hypertension, and the after-effects of a stroke. (Administrative Record ("AR") 24, 53, 62.) The Agency denied her application at the initial and reconsideration levels. Plaintiff then requested and was granted a hearing before an Administrative Law Judge ("ALJ"). (AR 20-22, 107-28.) Following the hearing, the ALJ issued a decision, denying Plaintiff's application for SSI. (AR 10-15.) Plaintiff requested review by the Appeals Council, which was denied. (AR 3-5, 8-9.)
Thereafter, Plaintiff filed the instant action, claiming that the ALJ erred when he failed to properly consider how her obesity, depression, and medication side effects affected her ability to work. (Joint Stip. at 3-23.) She also claimed that the ALJ erred when he failed to take these conditions into account in the hypothetical question to the vocational expert. For the following reasons, the Court concludes that these claims are without merit.
Plaintiff contends that the ALJ failed to consider the impact of her obesity on her ability to work. She argues that the evidence clearly showed that she was obese and, as a result, the ALJ had a duty to take this into consideration in determining whether she was disabled, citing Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003). (Joint Stip. at 3-4.) For the following reasons, the Court disagrees.
Plaintiff's application for benefits was based on her claim that she was disabled as a result of a stroke, diabetes, and high blood pressure. (AR 53.) She did not allege that obesity was a contributing factor. (AR 53.)
Plaintiff submitted 33 pages of medical records, covering the period from May 2004 to June 2005. (AR 73-106.) These records showed that Plaintiff complained of and was treated for hypertension, diabetes, and pain in various parts of her body. (AR 74-106.) She was not treated for obesity.
Almost every time she went to a doctor for treatment, Plaintiff was weighed at the doctor's office. Her weight ranged from 193 to 210 pounds. (AR 74-106.) Though Plaintiff testified that she had weighed as much as 270 pounds before her stroke in March 2004, she also explained, incongruently, that she was in good condition before her stroke. (AR 117, 118.) There are no records that document her weight above 210 pounds.
At the hearing in September 2005, Plaintiff testified that she was 5'-8" tall and weighed 212 pounds. (AR 115.) Not only did she not claim that she was impaired by her obesity, she specifically testified that it was not a factor. (AR 122 ("I don't think the weight is a problem. It's the pain that I have —").) Plaintiff's lawyer never raised the issue of obesity at the hearing and never elicited any testimony from his client as to how her obesity impacted her ability to work. (AR 107-28.) Only after the ALJ issued his decision denying her claim for benefits did Plaintiff argue that she was impaired as a result of her obesity.
The Court finds this argument unpersuasive. Plaintiff is hard-pressed to convince the Court that it was the ALJ's fault that he did not consider the impact of Plaintiff's obesity on her ability to work in light of the fact that Plaintiff not only did not raise the issue but denied it when asked about it by the ALJ. This is particularly true where Plaintiff was represented by counsel, who is entitled to some leeway in how he presents his client's case to the Agency.
The Court recognizes that, in Celaya, the Ninth Circuit held that an ALJ should consider the effect of a claimant's obesity on her ability to work, in combination with her other impairments, even where the claimant does not raise the issue. 332 F.3d at 1182. But the court in Celaya came to this conclusion based on the fact that: 1) the claimant had implicitly raised the issue of obesity in her filings; (2) the record showed that the claimant's obesity was close to the Listing criterion and "could exacerbate her reported illnesses"; and (3) the claimant did not have counsel and, therefore, it was incumbent on the ALJ to further develop the record where necessary. Id.
Obviously, the facts in the case at bar do not line up with those in Celaya. First, and importantly, Plaintiff was represented by counsel at the administrative hearing. Second, the objective medical evidence showed that Plaintiff, though technically obese, was not so overweight that her weight interfered with her ability to work. Third, when asked about her obesity, Plaintiff told the ALJ that it was not a factor. Fourth, Plaintiff was not close to meeting the requirements of any Listing for which the combination of her impairment and her obesity might push her over the threshold.
The claimant in Celaya weighed between 205 and 213 pounds — about the same as Plaintiff — but was only 57" (or 54") inches tall. Id. at 1179. Plaintiff is at least 11" taller than she was. (AR 115.)
Plaintiff's situation is much more like the claimant's in Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005). There, the Ninth Circuit distinguished its holding in Celaya, finding that an ALJ has no duty to consider a claimant's obesity where she is represented by counsel and the record does not indicate that her obesity "exacerbated her other impairments." Id. at 682.
The Court also notes that, though several physicians found that Plaintiff was obese, none of them found that her obesity limited her ability to work. (AR 71, 74, 76.) Nor did they find that Plaintiff suffered from any functional limitations due to her weight. For all these reasons, the Court concludes that the ALJ did not err in further addressing Plaintiff's obesity and, therefore, remand on this issue is not warranted. See Sanchez v. Sec'y of Health Human Servs., 812 F.2d 509, 511-12 (9th Cir. 1987) (holding that a claimant represented by counsel could not obtain reversal of the ALJ's decision on the ground that the ALJ failed to consider a particular impairment — even where the record before the ALJ contained some evidence of it — where the impairment was not significantly at issue and where the claimant offered no explanation for his failure to press the particular claim of impairment at or before the hearing).
Plaintiff next argues that the ALJ erred when he failed to find that she suffered from depression. (Joint Stip. at 14.) She complains that he impermissibly focused on her lack of treatment in reaching this conclusion. (Joint Stip. at 15.) This claim, too, is without merit.
It is the claimant's burden to prove that she has an impairment. See Thomas v. Barnhart, 278 F.3d 947, 954-55 (9th Cir. 2002). "[T]he existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings." Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (quoting SSR 96-4p).
Plaintiff was never treated for depression, or any other mental disorder. Nor did any doctor, psychologist, or social worker ever diagnose her with depression. The 30+ pages of medical records she submitted relate only to her treatment for physical ailments. (AR 74-106.) The only evidence that Plaintiff suffered from depression was her testimony that she did. This is simply not enough. Ukolov, 420 F.3d at 1005. This is particularly true in this case because the ALJ found that Plaintiff was not credible, (AR 13-14), a finding that she has not challenged.
Plaintiff relies on Regennitter v. Comm'r of the Soc. Sec. Admin., for the proposition that the ALJ should not have relied on the fact that Plaintiff had not undergone treatment to find that she was not depressed because "mental illness is notoriously underreported and because it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation." 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (internal quotation marks omitted) (citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). Plaintiff's argument is misplaced. Though the claimant in Regennitter had not undergone mental health treatment, he had been examined by two psychologist, both of whom had diagnosed him with depression. Id. at 1298-1300. Clearly, that is not the case here. No mental health professional has ever diagnosed Plaintiff with depression. In fact, her use of the term "depression" appears to be based on her self-diagnosis. This, alone, is not enough to establish that she is depressed under the Agency's rules and regulations. Ukolov, 420 F.3d at 1005. Nor did the ALJ err in so concluding. For this reason, this claim is rejected.
Plaintiff also cites Nguyen, 100 F.3d at 1465, for the proposition that the ALJ should not have relied on a lack of treatment to reject her claim of depression. But, in Nguyen, like Regennitter, the claimant had been examined by psychologists who had diagnosed him with depression. Id. at 1464-65. Thus, Nguyen does not help Plaintiff, either.
In her third claim of error, Plaintiff contends that the ALJ failed to properly consider the side effects of her medications in evaluating her ability to work. (Joint Stip. at 19-20.) She explains that common side effects include nausea, anxiety, drowsiness, weakness, fatigue, shortness of breath, confusion, dizziness, fainting spells, and headaches. (Joint Stip. at 18-19.) For the following reasons, the Court concludes that this claim is without merit.
An ALJ need not address all possible side effects of medications, only those that a claimant experiences, as evidenced by the record. See Thomas, 278 F.3d at 960 (upholding the ALJ's rejection of the plaintiff's statements that her medications affected her concentration and made her dizzy where no objective evidence was put forth and the ALJ properly found that her testimony was generally not credible). In a disability report Plaintiff submitted to the Agency in support of her application, she noted that her medications caused fatigue. (AR 44, 49-50.) At the administrative hearing, she testified that they caused sleepiness. (AR 116, 126.) She never alleged any other side effects. (AR 116, 126.) The ALJ accepted Plaintiff's claimed side effects and limited her to "simple repetitive work tasks" to account for them. (AR 13, 123.) This was all the ALJ was required to do. The fact that there were other possible side effects from her medications — side effects Plaintiff apparently never experienced — is irrelevant. And the ALJ did not err in failing to address them. For these reasons, this claim is denied.
Lastly, Plaintiff argues that the ALJ erred when he failed to include the limitations caused by her obesity, depression, and medication side effects in the hypothetical question to the vocational expert. (Joint Stip. at 22.) Again, the Court disagrees.
An ALJ is not required to include all alleged limitations in a hypothetical question to a vocational expert, only those that are supported by substantial evidence in the record. See Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989). The ALJ concluded, and this Court has agreed, that Plaintiff's obesity and alleged depression did not interfere with her ability to work. Thus, the ALJ was not required to take them into account in the hypothetical question to the vocational expert. As to the sleepiness caused by the medications, the ALJ limited the hypothetical person to someone who could perform only simple and repetitive tasks to accommodate for it. (AR 123.) Plaintiff has not provided any reason why this was not enough, and the Court has not come up with one on its own. Therefore, this claim is rejected.
For all these reasons, the Agency's decision is affirmed and the case is dismissed with prejudice.
IT IS SO ORDERED.