Opinion
Case No. CIV-19-440-G
12-06-2019
LAURA TAPIA, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Laura Tapia, seeks judicial review of the Social Security Administration's denial of her applications for disability insurance benefits (DIB) and supplemental security income (SSI). United States District Judge Charles Goodwin has referred the matter for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(B)(3); Fed. R. Civ. P. 72(b). The Commissioner has filed the Administrative Record (AR) [Doc. No. 11], and both parties have briefed their positions. For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
Citations to the parties' briefs reference the Court's CM/ECF pagination.
I. Procedural Background
On August 28, 2018, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff not disabled and, therefore, not entitled to DIB or SSI. AR 16-32. The Appeals Council denied Plaintiff's request for review. Id. at 1-6. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. §§ 404.1520, 416.920. Following this process, the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since May 3, 2015, her alleged onset date. AR 19.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: degenerative disc disease of cervical and lumbar spine; knee impairment, status post July 2016 left knee arthroscopy; shoulder tendonitis and bursitis; diabetes mellitus; hypertension; hypothyroidism; morbid obesity; major depressive disorder, recurrent, moderate; and borderline level of intellectual functioning. Id. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id. at 20.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that Plaintiff could perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with the following additional limitations:
[Plaintiff] requires a sit/stand option, in that [Plaintiff] can sit for about 45 minutes at any one time, before standing briefly at the workstation for less than 5 minutes; occasionally climb ramps and stairs, balance, and stoop; never kneel, crouch, crawl, and climb ropes, ladders, or scaffolds; avoid exposure to industrial type vibration; must avoid exposure to workplace hazards, such as dangerous moving machinery and unprotected heights; perform no work overhead; as to the use of the upper extremities beneath overhead level, frequently reach; understand, remember, and carry out simple instructions; make only simple work related decisions; deal with only occasional changes in work processes and environment; have no contact with the general public; and have only incidental, superficial work-related type contact with the general public, co-workers, and supervisors, i.e., brief, succinct, cursory, concise communication relevant to the task being performed.Id. at 24.
At step four, the ALJ determined Plaintiff is unable to perform any past relevant work and her acquired job skills do not transfer to other occupations within her RFC. Id. at 30-31. The ALJ then proceeded to step five and, relying on the testimony of a vocational expert, found Plaintiff can perform work existing in significant numbers in the national economy. Id. at 31. Specifically, the ALJ found Plaintiff can perform the requirements of representative jobs such as table worker/sorter, document preparer, and touchup screener. Id. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id. at 32.
III. Claim Presented for Judicial Review
Plaintiff presents one claim of error, alleging the ALJ erred in assessing her obesity. Pl.'s Br. [Doc. No. 15] at 4-9. As explained below, the undersigned finds no grounds for reversal.
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009); see also Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (holding that the court only reviews an ALJ's decision "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied" and in that review, "we neither reweigh the evidence nor substitute our judgment for that of the agency" (citations and internal quotation marks omitted)). Under such review, "common sense, not technical perfection, is [the Court's] guide." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012).
V. Analysis
A. The ALJ's analysis of Plaintiff's obesity
Plaintiff alleges that the ALJ erred in failing to consider Plaintiff's morbid obesity beyond step two of the sequential evaluation process. Pl.'s Br. at 4-9. Asserting that the ALJ did not "actually analyz[e]" her obesity, Plaintiff quotes from the ALJ's decision and contends that the ALJ "opted to instead provide the above boilerplate paragraph, which gives the blanket assertion that obesity has been considered in his RFC." Id. at 4 (citing AR 20-21). Plaintiff relies on Social Security Ruling 02-1p and cases from various circuits to argue that the ALJ was required to consider the effects of obesity. Id. at 5-7. Both the ruling and Tenth Circuit precedent, however, also specify that an ALJ "will not make assumptions about the severity or functional effects of obesity combined with other impairments." SSR 02-1p, 2002 WL 34686281, at *6 (Sept. 12, 2002); Rose v. Colvin, 634 F. App'x 632, 637 (10th Cir. 2015). Instead, the ALJ must "evaluate each case based on the information in the case record." SSR 02-1p, 2002 WL 34686281, at *6; Rose, 634 F. App'x at 637. The ALJ did so here, providing the following discussion with respect to any functional limitations that might have been caused by Plaintiff's obesity:
There are no Listing criteria in Appendix 1 specific to the evaluation of obesity impairments. However, SSR 02-1p requires consideration of obesity in determining whether a claimant has medically determinable impairments that are severe, whether these impairments meet or equal any listing, and finally in determining the residual functional capacity. Obesity may be an adverse impact upon co-existing impairments. For example, obesity may affect the cardiovascular and respiratory symptoms, making it harder for the chest and lungs to expand and imposing a greater burden upon the heart. Someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation that might be expected from arthritis alone. In addition, obesity may limit an individual's ability to sustain activity on a regular and continuing basis during an eight-hour day, five-day week or equivalent schedule. These considerations have been taken into account in reaching the conclusions herein at the 2nd through 5th steps of the sequential disability evaluation process, even though no treating or examining medical source has specifically attributed additional or cumulative limitations to the claimant's obesity.AR 20-21; see also Pl.'s Br. at 4 (citing same language).
The ALJ has stated that he considered obesity throughout the evaluation process and the Court takes the ALJ at his word. See Wall, 561 F.3d at 1070. Moreover, the ALJ found that "no treating or examining medical source has specifically attributed additional or cumulative limitations to the claimant's obesity," which is an accurate statement. AR 21.
The Tenth Circuit does not require an ALJ to "note the absence of any evidence that her obesity resulted in additional functional limitations or exacerbated any other impairment." Smith v. Colvin, 625 F. App'x 896, 899 (10th Cir. 2015). Indeed, the Tenth Circuit has determined that an ALJ's failure to explicitly discuss a claimant's obesity during the formulation of the claimant's RFC is not grounds for remand when the claimant has "not discuss[ed] or cite[d] to any evidence showing that obesity further limited" the claimant's RFC more than the ALJ's final determination. Arles v. Astrue, 438 F. App'x 735, 740 (10th Cir. 2011) (finding remand was not warranted despite the court's conclusion that the ALJ "could have provided a more particularized discussion of the effects of [the plaintiff's] obesity on" his RFC); see also, e.g., Smith, 625 F. App'x at 899 (affirming when the ALJ concluded the plaintiff's obesity was a severe impairment but "never analyzed or discussed [the plaintiff's] obesity, including in [the ALJ's] RFC analysis").
Here, Plaintiff points to no omitted functional limitation that was necessary in light of her obesity and "has not shown that her obesity alone, or in combination with other impairments, resulted in any further limitations" or precluded her from performing less than the full range of sedentary work. Smith, 625 F. App'x at 899 (citing SSR 02-1p, 2002 WL 34686281); see Pl.'s Br. at 4-9. See also, e.g., Rose, 634 F. App'x at 637 (finding that "the factual record does not support [the plaintiff's] position that her obesity, either alone or in combination with other conditions, precludes her from performing a limited range of sedentary work" when plaintiff "point[ed] to no medical evidence indicating that her obesity resulted in functional limitations" (internal alterations, quotation marks, and citation omitted)); Callicoatt v. Astrue, 296 F. App'x 700, 702 (10th Cir. 2008) (rejecting challenge to ALJ's failure to consider plaintiff's obesity where plaintiff pointed to no evidence or testimony "showing that her obesity exacerbated her other impairments"); Berry v. Saul, No. CIV-18-1191-HE, 2019 WL 5295551, at *2 (W.D. Okla. Oct. 1, 2019) (R&R), adopted, 2019 WL 5295524 (W.D. Okla. Oct. 18, 2019) (rejecting plaintiff's challenge to ALJ's consideration of obesity where plaintiff presented no evidence of obesity's effect on her functional limitations); Woods v. Colvin, No. CIV-13-763-HE, 2014 WL 2801301, at *5 (W.D. Okla. May 28, 2014) (R&R), adopted, 2014 WL 2801304 (W.D. Okla. June 19, 2014) (rejecting claimant's challenge to ALJ's consideration of obesity where claimant "fail[ed] to state what 'sufficient limitations' the ALJ should have included").
B. Dr. Chaudry's opinion
Instead, Plaintiff points to a statement from S.A. Chaudry, M.D., a state agency physician who examined Plaintiff on February 12, 2018, in conjunction with her DIB and SSI applications. AR 678-85. The ALJ summarized Dr. Chaudry's report as follows:
A BMI rating of 55.13 was noted. Straight leg raising was negative bilaterally. She evidence[s] full (5/5) power and no muscular wasting. Deep tendon reflexes, supinators, biceps, triceps, knees, and ankles were bilaterally symmetrical with normal plantar response. Sensation to touch was intact all over. She was able to walk unassisted. Heel and toe walking was achieved. Gait was slow. She could button and unbutton, pick up a piece of paper, and tear it up with no difficulty. Fine and gross manipulative movements of the hand and fingers were normal and intact and grip strength in both hands was normal (5/5). Ultimately, the examiner opined the claimant could sit for 45 minutes at one time and stand and/or walk for 30 minutes at one time.AR 27-28. The ALJ also granted great weight to Dr. Chaudry's finding that Plaintiff can sit for 45 minutes at one time and stand/walk for 30 minutes at a time, further finding that such limitations were "consistent with sedentary work." Id. at 28. Plaintiff does not contend that the ALJ's summary is inaccurate, or that the ALJ erred in giving Dr. Chaudry's opinion on limitations great weight. See Pl.'s Br. at 7-9. Rather, Plaintiff contends that the ALJ erred in failing to mention Dr. Chaudry's notation that Plaintiff's morbid obesity "is definitely interfering with the patient's daily living," arguing that such omission was "cherry-pick[ing] Dr. Chaudry's opinion." Id. at 7-8; see also AR 681.
Plaintiff is incorrect. While "[t]he record must demonstrate that the ALJ considered all of the evidence," there is no requirement that an ALJ "discuss every piece of evidence." Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (internal quotation marks omitted). Dr. Chaudry's statement that Plaintiff's obesity interfered with her daily living provides no analysis of or insight into Plaintiff's functional abilities and, as such, the ALJ was not required to discuss it. Cf. Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995) (affirming where ALJ rejected treating physician's opinion because statement about limitations was "generic and did not accurately assess plaintiff's true functional capabilities" and the opinion "did not offer any specific functional limitation"); see also Bales v. Colvin, 576 F. App'x 792, 797 (10th Cir. 2014) (finding no error when the plaintiff "fails to explain how [an examining physician's] findings have any bearing on her functional limitations, such that the ALJ should have specifically discussed those findings in setting her RFC").
Though Plaintiff argues that Dr. Chaudry's statement about Plaintiff's activities of daily living necessarily leads to a finding that "she will assuredly have even greater difficulty performing the duties of a full-time job," Plaintiff presents no authority to support such supposition. See Pl.'s Br. at 9. Moreover, to the extent that Plaintiff's activities of daily living are affected by her morbid obesity, it is well-established that a claimant's activities of daily living do not, by themselves, determine the claimant's ability to work. See Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) ("sporadic performance of household tasks or work does not establish that a person is capable of engaging in substantial gainful activity") (alteration and internal quotation marks omitted). But here, the ALJ has not relied solely on Plaintiff's activities of daily living to determine her ability to work; rather the ALJ found Plaintiff to be severely impaired by morbid obesity, documented that "no treating or examining medical source has specifically attributed additional or cumulative limitations to the claimant's obesity," reviewed all of the evidence (including noting her BMI multiple times), and found that Plaintiff can perform less than the full range of sedentary work. AR 19, 21, 24-30. The undersigned finds that substantial evidence supports the ALJ's decision.
RECOMMENDATION
The ALJ applied the correct legal standards and considered the relevant medical evidence. Plaintiff demonstrates no reversible error in those assessments and this Court cannot reweigh the medical evidence to reach a different conclusion. It is therefore recommended that the Commissioner's decision be affirmed.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by December 20, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 6th day of December, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE