The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOE MONTOYA,
Plaintiff,
v. Case No. 8:21-cv-176-AEP
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,1
Defendant.
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ORDER
Plaintiff seeks judicial review of the denial of his claim for a period of
disability and disability insurance benefits (“DIB”). As the Administrative Law
Judge’s (“ALJ”) decision was based on substantial evidence and employed proper
legal standards, the Commissioner’s decision is affirmed.
I.
A. Procedural Background
Plaintiff filed an application for a period of disability and DIB (Tr. 187-96).
The Social Security Administration (“SSA”) denied Plaintiff’s claims both initially
and upon reconsideration (Tr. 94-126, 129-31, 133-38). Plaintiff then requested an
administrative hearing (Tr. 139-41). Per Plaintiff’s request, the ALJ held a hearing
1 Dr. Kilolo Kijakazi is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Acting Commissioner Kilolo Kijakazi
should be substituted for Commissioner Andrew M. Saul as the defendant in this matter.
No further action needs to be taken to continue this matter by reason of the last sentence
at which Plaintiff appeared and testified (Tr. 33-93). Following the hearing, the ALJ
issued an unfavorable decision finding Plaintiff not disabled and accordingly denied
Plaintiff’s claims for benefits (Tr. 12-32). Subsequently, Plaintiff requested review
from the Appeals Council, which the Appeals Council denied (Tr. 1-6, 184-86).
Plaintiff then timely filed a complaint with this Court (Doc. 1). The case is now ripe
for review under 42 U.S.C. § 405(g).
B. Factual Background and the ALJ’s Decision
Plaintiff, who was born in 1954, claimed disability beginning December 26,
2017 (Tr. 195). Plaintiff completed two years of college (Tr. 217). Plaintiff’s past
relevant work experience included work as an electrician (Tr. 84, 217). Plaintiff
alleged disability due to a stroke, vision issues, balance problems, high blood
pressure, and high cholesterol (Tr. 216, 228).
In rendering the administrative decision, the ALJ concluded that Plaintiff
met the insured status requirements through June 30, 2020 and had not engaged in
substantial gainful activity since December 26, 2017, the alleged onset date (Tr. 17).
After conducting a hearing and reviewing the evidence of record, the ALJ
determined Plaintiff had the following severe impairments: glaucoma, loss of
peripheral vision, history of stroke, and degenerative disc disease (Tr. 18).
Notwithstanding the noted impairments, the ALJ determined Plaintiff did not have
an impairment or combination of impairments that met or medically equaled one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 18).
The ALJ then concluded that Plaintiff retained a residual functional capacity
(“RFC”) to perform medium work, except that he could only frequently use ramps
and stairs; could never use ladders, ropes, or scaffolds; could use a step stool; could
only occasionally balance; could only frequently stoop, kneel, crouch, or crawl; his
vision enabled him to avoid ordinary hazards in the workplace, but he should never
be exposed to unprotected heights nor be required to work around large mechanical
moving parts; and, in addition to normal breaks, would be off task 5% of the
workday due to fatigue (Tr. 19). In formulating Plaintiff’s RFC, the ALJ considered
Plaintiff’s subjective complaints and determined that, although the evidence
established the presence of underlying impairments that reasonably could be
expected to produce the symptoms alleged, Plaintiff’s statements as to the intensity,
persistence, and limiting effects of his symptoms were not entirely consistent with
the medical evidence and other evidence (Tr. 21).
Considering Plaintiff’s noted impairments and the assessment of a vocational
expert (“VE”), however, the ALJ determined Plaintiff could not perform his past
relevant work (Tr. 25). Given Plaintiff’s background and RFC, the VE testified that
Plaintiff could perform other jobs existing in significant numbers in the national
economy, such as a linen room attendant, a laundry worker, and a checker (Tr. 26,
88). Accordingly, based on Plaintiff’s age, education, work experience, RFC, and
the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 26-27).
II.
To be entitled to benefits, a claimant must be disabled, meaning the claimant
must be unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). A “physical or mental
impairment” is an “impairment that results from anatomical, physiological, or
psychological abnormalities, which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
To regularize the adjudicative process, the SSA promulgated the detailed
regulations currently in effect. These regulations establish a “sequential evaluation
process” to determine whether a claimant is disabled. 20 C.F.R. § 404.1520. If an
individual is found disabled at any point in the sequential review, further inquiry is
unnecessary. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must determine,
in sequence, the following: whether the claimant is currently engaged in substantial
gainful activity; whether the claimant has a severe impairment, i.e., one that
significantly limits the ability to perform work-related functions; whether the severe
impairment meets or equals the medical criteria of 20 C.F.R. Part 404, Subpart P,
Appendix 1; and whether the claimant can perform his or her past relevant work.
20 C.F.R. § 404.1520(a)(4). If the claimant cannot perform the tasks required of his
or her prior work, step five of the evaluation requires the ALJ to decide if the
claimant can do other work in the national economy in view of his or her age,
education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). A claimant is
entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S.
137, 140-42 (1987); 20 C.F.R. § 404.1520(g)(1).
A determination by the Commissioner that a claimant is not disabled must
be upheld if it is supported by substantial evidence and comports with applicable
legal standards. See 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011) (citation and internal quotation marks omitted). While the court reviews
the Commissioner’s decision with deference to the factual findings, no such
deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d
1253, 1260 (11th Cir. 2007) (citations omitted).
In reviewing the Commissioner’s decision, the court may not reweigh the
evidence or substitute its own judgment for that of the ALJ, even if it finds that the
evidence preponderates against the ALJ’s decision. Winschel, 631 F.3d at 1178
(citations omitted); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(citations omitted). The Commissioner’s failure to apply the correct law, or to give
the reviewing court sufficient reasoning for determining that he or she has
conducted the proper legal analysis, mandates reversal. Ingram, 496 F.3d at 1260
(citation omitted). The scope of review is thus limited to determining whether the
findings of the Commissioner are supported by substantial evidence and whether
the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002) (per curiam) (citations omitted).
III.
Plaintiff argues that the ALJ erred by (1) failing to find that Plaintiff’s obesity
constituted a severe impairment and (2) failing to address whether Plaintiff’s obesity
aggravated Plaintiff’s other impairment and impact his RFC.2 For the following
reasons, the ALJ applied the correct legal standards, and the ALJ’s decision is
supported by substantial evidence.
A. Severe Impairment
Plaintiff argues that the ALJ erred by failing to find that Plaintiff’s obesity
was a severe impairment. According to Plaintiff, his height has been reported
between 5’8” and 5’9” tall and his weight has been reported from 200 to 208.4
pounds, with a BMI of 30.3-30.8.
At step two of the sequential analysis, the ALJ considers the medical severity
of a claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii). Step two operates as a
threshold inquiry. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986); see Gray
v. Comm’r of Soc. Sec., 550 F. App’x 850, 853 (11th Cir. 2013) (per curiam).3 At step
two of the sequential evaluation process, a claimant must show that he or she suffers
from an impairment or combination of impairments that significantly limits his or
2 Plaintiff’s argument is not clear from his position in the Joint Memorandum. In the body
of the memorandum, Plaintiff argues that the ALJ erred by failing to find that Plaintiff’s
obesity constituted a severe impairment (Doc. 20, at 9). However, in Plaintiff’s statement
of relief, Plaintiff states that the “matter should be reversed and remanded with direction
to the [ALJ] to address whether the claimant’s obesity would aggravate [Plaintiff’s] other
impairment and impact his [RFC]” (Doc. 20, at 13). Therefore, this Order will address
both issues.
3 Unpublished opinions are not considered binding precedent but may be cited as
her physical or mental ability to do basic work activities. See 20 C.F.R. §§
404.1520(a)(4)(ii), 404.1521, 404.1522(a). “An impairment is not severe only if the
abnormality is so slight and its effect so minimal that it would clearly not be
expected to interfere with the individual’s ability to work, irrespective of age,
education or work experience.” McDaniel, 800 F.2d at 1031; Brady v. Heckler, 724
F.2d 914, 920 (11th Cir. 1984) (per curiam). “[T]he ‘severity’ of a medically
ascertained disability must be measured in terms of its effect upon ability to work,
and not simply in terms of deviation from purely medical standards of bodily
perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
In other words, an impairment or combination of impairments is not considered
severe where it does not significantly limit the claimant’s physical or mental ability
to perform basic work activities. Turner v. Comm’r of Soc. Sec., 182 F. App’x 946, 948
(11th Cir. 2006) (per curiam) (citations omitted); 20 C.F.R. § 404.1521.
Social Security Ruling (“SSR”) 19-2p, which discusses the SSA’s evaluation
of obesity explicitly states that the “a medical source’s descriptive terms for levels
of obesity . . . do not establish whether obesity is a severe impairment for disability
program purposes.” SSR 19-2p, 2019 WL 2374244, at *4 (May 20, 2019).4 SSR 19-
2p also states that, although there is often a significant correlation between BMI and
excess body fat and that the BMI will show whether the claimant has obesity in
4 SSR 19-2p, effective May 20, 2019, rescinded and replaced SSR 02-1p, 2002 WL
34686281 (Sept. 12, 2002) (“SSR 02-1p”)). See SSR 19-2p. However, SSR 02-1p and SSR
19-2p are substantially similar regarding the ALJ’s consideration of obesity in determining
most cases, such correlation is not true in every case. SSR 19-2p, 2019 WL 2374244,
at *3. Indeed, SSR 19-2p goes further, stating that “[n]o specific weight or BMI
establishes obesity as a severe impairment within the disability program.” 2019 WL
2374244, at *2. Rather, the ALJ conducts “an individualized assessment of the
effect of obesity on a person’s functioning when deciding whether the impairment
is severe.” SSR 19-2p, 2019 WL 2374244, at *4.
Here, the ALJ found that Plaintiff’s diabetes mellitus, hypertension, cocaine
abuse, hyperlipidemia, erectile dysfunction, obesity, right eye cataracts,
degenerative joint disease, vitamin d deficiency, hepatitis C, hypokalemia, fatty
liver, renal cysts, colon polyp, enlarged prostate, and hemorrhoids as not severe in
that they cause no more than minimal vocationally relevant limitations (Tr. 18).
Notwithstanding, the ALJ stated that she considered all of Plaintiff’s medically
determinable impairments, including those that were not severe, when assessing
Plaintiff’s RFC (Tr. 18). Contrary to Plaintiff’s argument, the presence of an
elevated BMI does not equate to the finding that Plaintiff’s purported obesity
constituted a severe impairment. Although Plaintiff was reported as obese in a
medical record (Tr. 1335) due to his height and weight (5’9” and 207 pounds), the
record also noted that he was not in acute distress at the time (Tr. 1335). The ALJ
was therefore not required to conclude that Plaintiff’s elevated BMI provided the
basis for a finding that Plaintiff was obese or that such obesity constituted a severe
impairment at step two.
Regardless, the finding of any severe impairment, whether or not it results
from a single severe impairment or a combination or impairments that together
qualify as severe, is enough to satisfy step two. Jamison v. Bowen, 814 F.2d 585, 588
(11th Cir. 1987) (citations omitted); see also Packer v. Comm’r, Soc. Sec. Admin., 542
F. App’x 890, 892 (11th Cir. 2013) (per curiam) (“[T]he ALJ determined at step two
that at least one severe impairment existed; the threshold inquiry at step two
therefore was satisfied.”); Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 824-25
(11th Cir. 2010) (per curiam) (noting that an ALJ’s failure to identify an impairment
as severe, where the ALJ found that the plaintiff suffered from at least one severe
impairment, constituted harmless error and was, in fact, sufficient to meet the
requirements of step two, and additionally noting that nothing requires the ALJ to
identify, at step two, all of the impairments that could be considered severe). Here,
the ALJ determined that Plaintiff had the following severe impairments: glaucoma,
loss of peripheral vision, history of stroke, and degenerative disc disease (Tr. 18).
Accordingly, since the ALJ determined that Plaintiff suffered from multiple severe
impairments at step two, and thus proceeded beyond step two in the sequential
analysis, any error in failing to find that Plaintiff suffered from other severe
impairments is rendered harmless. Gray, 550 F. App’x at 853-54; Packer, 542 F.
App’x at 892; Heatly, 382 F. App’x at 824-25.
B. RFC
Plaintiff argues that Plaintiff’s obesity could have aggravated Plaintiff’s other
impairments as his weight and BMI were categorized as obese and the second state
agency consultant’s opinion that Plaintiff could perform activities consistent with a
light exertional level, which the ALJ found unpersuasive, could have been
reasonably derived from the consultant’s consideration of Plaintiff’s obesity
Although an ALJ must consider a claimant’s obesity when evaluating
disability, it is Plaintiff who bears the burden of proving that his obesity results in
functional limitations and that she was “disabled” under the Social Security Act.
See 20 C.F.R. § 404.1512(a) (instructing claimant that “you have to prove to us that
you are blind or disabled [and you must] ... submit all evidence known to you that
relates to whether or not you are blind or disabled”). The SSA has acknowledged
that obesity can cause limitation of function in any of the exertional functions such
as sitting, standing, walking, lifting, carrying, pushing, and pulling, in non-
exertional functions such as climbing, balancing, stooping, kneeling, crouching, and
crawling. SSR 19-2P, 2019 WL 2374244, at *4. Accordingly, under SSR 19–2p, an
RFC assessment should take account of the “effect obesity has upon the person’s
ability to perform routine movement and necessary physical activity within the
work environment.” 2019 WL 2374244, at *4.
Here, the ALJ evaluated the state agency consultants’ opinions regarding
Plaintiff’s physical impairments. The ALJ noted that the initial consultant found
that Plaintiff could perform activities consistent with a medium exertional level with
several visual, environmental, and postural limitations (Tr. 23); (Tr. 96-105).
However, the ALJ found that Plaintiff warranted greater postural limitations than
the consultant found based on the record (Tr. 23). The ALJ also found that record
showed that Plaintiff warranted fewer environmental restrictions than the
consultant opined (Tr. 23). The ALJ noted that the second state agency consultant
opined that Plaintiff could perform activities consistent with a light exertional level
with several postural limitations (Tr. 23-24); (Tr. 108-19). The ALJ found that this
was not consistent with the record (Tr. 23). Additionally, the ALJ noted that this
portion of the opinion was not fully supported by the consultant’s own assertions
(Tr. 23). For instance, the consultant opined that Plaintiff could complete daily
living activities with some rest periods, that Plaintiff’s records showed relatively
benign objective findings and conservative degree of treatment (Tr. 117). There is
no mention of the effects of Plaintiff’s obesity on his functional limitations in the
second consultant’s opinion.
Moreover, outside of general notes of healthy diet and exercise, the record
does not demonstrate any complaints from Plaintiff regarding the effects of his
obesity on functional limitations, or from medical providers alerting to the effects
of the same. In fact, at the hearing, when the ALJ asked Plaintiff what he was doing
to address his diabetes, blood pressure, and high cholesterol, Plaintiff responded
with the following:
[Plaintiff]: Yes, yeah. I’m taking -- for the diabetes, I’m taking
metformin. I start -- they started me with metformin and I’m really
cutting out of carbs and all that and everything that’s bad for me and I
lost 12, 12 to 13 pounds. And so –
[ALJ]: Wow?
[Plaintiff]: So when I go back to the doctor, he’s probably going to be
proud of me for, you know, losing the weight and I haven’t I need to
get him to check my ACL [sic] 1 or whatever ‘s called.
(Tr. 56). Thus, even at the hearing, Plaintiff failed to point to his obesity as a
significant cause of any functional impairment. See James v. Barnhart, 177 F. App’x
875, 877 n.2 (11th Cir. 2006) (per curiam) (ALJ did not err in failing to find obesity
to be a severe impairment where, during the plaintiff’s own testimony at the
administrative hearing, the plaintiff did not complain that obesity was a functional
impairment).
While obesity can cause functional limitations in some individuals, Plaintiff
has merely cited his weight and offered generalizations about the possible effects of
obesity (Doc. 20, at 8-9). For instance, Plaintiff cites to declining functional capacity
association with chronic worsening of dyspnea on mild to moderate exertion (Doc.
20, at 9). However, there is nothing in the record that links Plaintiff’s obesity to the
chronic worsening of dyspnea. Plaintiff alleges no facts and points to no evidence
in the record to support his assertion that his obesity places significant limitations
on his ability to work. And the objective medical evidence of record does not
demonstrate that any treating or consultative physician placed limitations on
Plaintiff due to his obesity. Therefore, Plaintiff has failed to explain how his obesity
causes further limitations than those found by the ALJ, and he has not identified
any reliable medical opinions supporting any limitations beyond those stated in his
RFC that result from his obesity.
For the foregoing reasons, the ALJ applied the correct legal standards, and
the ALJ’s decision is supported by substantial evidence.
IV.
Accordingly, after consideration, it is hereby
ORDERED:
1. The decision of the Commissioner is AFFIRMED.
2. The Clerk is directed to enter final judgment in favor of the Commissioner
and close the case.
DONE AND ORDERED in Tampa, Florida, on this 29th day of August,
2022.
1 Af
A V)
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ANTHONY E. SRE
United Sfates Magistrate Judge
cc: Counsel of Record