Fain v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

ARCHIE D. F. JR., )

)

Plaintiff, )

)

v. ) Case No. 20-CV-52-CDL

)

ANDREW M. SAUL, )

Commissioner of the )

Social Security Administration, )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review under 42 U.S.C. § 405(g) of a decision of the

Commissioner of the Social Security Administration (Commissioner) denying Social

Security disability benefits. For the reasons set forth below, the Commissioner’s decision is

affirmed.

I. Legal Standards

A. Standard of Review

Judicial review of a Commissioner’s disability determination “is limited to

determining whether the Commissioner applied the correct legal standards and whether the

agency’s factual findings are supported by substantial evidence.” Noreja v. Soc. Sec.

Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (quoting Knight ex rel. P.K. v. Colvin, 756

F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and

is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005)); see also Biestek v. Berryhill, __ U.S. __, 139 S. Ct. 1148, 1154 (2019). “Evidence

is not substantial if it is overwhelmed by other evidence in the record or constitutes mere

conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).

So long as supported by substantial evidence, the agency’s factual findings are

“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court may

not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d

at 1178.

B. Five-Step Agency Process

The Social Security Act (Act) provides disability insurance benefits to qualifying

individuals who have a physical or mental disability. See 42 U.S.C. § 423. The Act defines

“disability” as an “inability 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

12 months.” See id. § 423(d)(1)(A).

The Commissioner uses a five-step, sequential process to determine whether a

claimant is disabled. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). A finding that the claimant is

disabled or is not disabled at any step ends the analysis. See id.; see also Lax v. Astrue, 489

F.3d 1080, 1084 (10th Cir. 2007) (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.

1988)).

At step one, the ALJ determines whether the claimant is engaged in any substantial

gainful activity. A person who is performing substantial gainful activity is not disabled.

At step two, the ALJ determines whether the claimant has an impairment or a

combination of impairments that is severe. “This determination is governed by the

Secretary’s severity regulations, is based on medical factors alone, and, consequently, does

not include consideration of such vocational factors as age, education, and work

experience.” Williams, 844 F.2d at 750 (internal citation omitted). A claimant who does

not have a severe impairment is not disabled.

At step three, the ALJ determines whether the claimant’s severe impairment or

combination of impairments is equivalent to one that is listed in the applicable regulation,

which the Commissioner “acknowledges are so severe as to preclude substantial gainful

activity.” Williams, 844 F.2d at 751 (internal quotation and citation omitted); see 20 C.F.R.

§ 404.1520(d); 20 C.F.R. Part 404, subpt. P, App’x 1 (Listings). If the claimant has an

impairment that meets all the criteria of a Listing, the claimant is disabled. Otherwise, the

ALJ proceeds to step four.

At step four, the claimant must show that her impairment or combination of

impairments prevents her from performing her previous work. If the claimant can perform

her past relevant work, she is not disabled. Step four is comprised of three distinct phases.

See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ determines the

claimant’s residual functional capacity (RFC) “based on all the relevant medical and other

evidence.” 20 C.F.R. § 404.1520(e). Second, the ALJ determines the physical and mental

demands of the claimant’s past relevant work. Winfrey, 92 F.3d at 1023 (citing 20 C.F.R.

§ 404.1520(e)). Finally, the ALJ determines whether the RFC found in phase one allows

the claimant to meet the job demands found in phase two. Winfrey, 92 F.3d at 1023 (citing

SSR 86-8). If the claimant can perform her past relevant work, she is not disabled.

The claimant bears the burden on steps one through four. Lax, 489 F.3d at 1084. If

the claimant satisfies this burden, thus establishing a prima facie case of disability, the

burden of proof shifts to the Commissioner to show at step five that the claimant retains

the capacity to perform other work available in the national economy, in light of the

claimant’s age, education, and work experience. Id.

II. Procedural History

Plaintiff applied for disability benefits on April 5, 2017, alleging a disability onset

date of December 15, 2015, which he amended to March 18, 2016 at the December 20, 2018

hearing. (R. 166, 36). Plaintiff alleged disability due to injuries to the right shoulder area,

including a torn rotator cuff and bicep, lumbar fusion operations, right knee pain and pins

in the right leg, loss of hearing, dyslexia, ongoing pain from a left foot procedure, and vision

problems. (R. 188, 222). Before his alleged disability, Plaintiff worked as a printing press

operator, customer service representative, a trucking company escort driver, and trailer

assembler. (R. 170-83, 189, 211-18).

Plaintiff’s claim was denied initially and on reconsideration. Plaintiff then requested

a hearing before an Administrative Law Judge (ALJ). ALJ Christopher Hunt held a hearing

on December 20, 2018, at which Plaintiff was represented by counsel. (R. 33). A vocational

expert (VE) also testified at the hearing. Id. The ALJ denied benefits in a decision dated

January 18, 2019. (R. 8). Plaintiff appealed the ALJ’s decision to the Appeals Council,

which denied Plaintiff’s request for review on December 9, 2019. (R. 1). As a result, the

ALJ’s decision became the final decision of the Commissioner. Id. Plaintiff then timely

appealed to the district court.

III. The ALJ’s Decision

A. Step One

At step one, the ALJ found that Plaintiff is insured through December 31, 2021 and

that, at the time of the decision, Plaintiff had not engaged in substantial gainful activity since

his amended alleged disability onset date of March 18, 2016. (R. 17).

B. Step Two

At step two, the ALJ found that Plaintiff suffers from the severe impairments of

Degenerative Joint Disease, Degenerative Disc Disorder, and Obesity. Id. The ALJ found

the following non-severe impairments: Status Post Left Foot Surgery. (R. 18). The ALJ also

identified the following non-medically determinable impairments: Vision Deficiencies and

Dyslexia. Id.

C. Step Three

At step three, the ALJ determined that Plaintiff’s impairments do not meet or

medically equal a Listing. The ALJ stated that he gave special consideration to Listings

relating to Dysfunction of the Joints (Listing 1.02, et seq.) and Disorders of the Spine

(Listing 1.04, et seq.). (R. 18). The ALJ considered Plaintiff’s obesity according to the

criteria set forth in Social Security Ruling (SSR) 02-1p and determined that the effects of

Plaintiff’s obesity combined with his other impairments neither meets nor equals a listing.

Id.

D. Step Four

The ALJ found that Plaintiff has the RFC to perform light work as defined in 20

C.F.R. § 404.1567(b), with the following limitations:

[Plaintiff] can lift no more than twenty pounds occasionally and ten

pounds frequently. Pushing and pulling limitations consistent with

lifting. The [Plaintiff] can sit, stand, or walk six hours in an eight-

hour workday. The [Plaintiff] could occasionally bend, stoop, kneel,

crouch, crawl, or climb stairs. The [Plaintiff] cannot climb ladders,

ropes, or scaffolding. The [Plaintiff] can only occasionally reach or

work overhead. The [Plaintiff] cannot use the right hand for handling

objects such as a hammer. The [Plaintiff] can no more than

occasionally use the right upper extremity for grasping or repetitive

motion.

(R. 18-19). In explaining the RFC determination, the ALJ discussed Plaintiff’s hearing

testimony, medical records, and medical opinion evidence in the record, as summarized in

part below.

i. Hearing Testimony

Plaintiff testified that he suffers from right shoulder limitations that cause pain and

limit his range of motion, and as a result he cannot perform overhead, front, or side lifting

with his dominant right upper extremity. (R. 19). Plaintiff also testified that he underwent

three back surgeries, most recently in 2015, and as a result he cannot stand in one place for

more than thirty minutes or bend over. Id. Plaintiff also testified that he had a history of foot

surgeries as a child that cause pain and difficulty walking. Id.

ii. Medical Records

Plaintiff’s file contains treatment records from various medical providers covering

a period from December 12, 2014 to September 11, 2017, for a variety of complaints and

diagnoses, including right shoulder pain, rhabdomyolysis, right rotator cuff tear, and right

shoulder tendinitis. (R. 20) (citing Ex. 1F, p. 51; 2F, p.1; 9F, p.1). On June 8, 2015, the

Plaintiff underwent a magnetic resonance imaging (MRI) examination of the right shoulder

that showed a partially torn tendon, which ultimately required Plaintiff to have arthroscopic

rotator cuff repair surgery on August 28, 2015. Id. (citing (Ex. 4F)). Plaintiff underwent a

second MRI on February 8, 2016, which showed moderate to severe arthritic changes to

the acromioclavicular joint leading to Plaintiff’s second arthroscopic right shoulder surgery

on March 18, 2016, the amended alleged onset date of disability. Id. A third MRI on the

right shoulder on May 25, 2016 showed a focal full thickness tear on the leading edge of

the supraspinatus tendon and a mild thickness intrasubstance involve the distal

infraspinatus tendon, and the superior labrum was diminutive in size. Id. Plaintiff

underwent a third right shoulder arthroscopy, performed by David E. Nonweiler, M.D., on

July 13, 2016. Id.

In addition to the medical records relating to Plaintiff’s right shoulder procedures,

the ALJ also noted physical examinations in the records which showed instances of

elevated blood pressure and body mass index (BMI) as well as tenderness, guarding,

weakness, and reduced range of motion in the right shoulder. (R. 19-20).

On June 20, 2017, Sidney D. Williams, MD evaluated the Plaintiff, during which

time the Plaintiff complained of musculoskeletal problems with his back, right shoulder,

right knee, and right bicep. (R. 19). A physical examination showed an elevated BMI,

elevated blood pressure, and a spinal surgical scar, as well as tenderness and restricted

motion in the spine and right upper extremity. Id. Plaintiff’s posture was bent, his gait was

slowed to 20% of normal speed, and he exhibited difficulty rising from a seated position.

Id. Straight leg raises were positive, and Plaintiff’s deep tendon reflexes were reduced

bilaterally. Id. Dr. Williams reviewed Plaintiff’s abnormal lumbosacral x-rays which

showed two bars and four screws fastened to L3-L4, and bone fusion changing notes at L4-

L5. (R. 20).

Following Plaintiff’s physical examination, Dr. Williams’s diagnostic impressions

included obesity, osteoarthritis of the bilateral knees, right rotator cuff injury, lumbar

discogenic pain, postoperative pain, lumbar spinal stenosis, debility, impaired mobility,

and post laminectomy syndrome of the lumbar region. Id.

iii. Medical Opinions

The ALJ noted the state agency physician’s findings that Plaintiff could lift and/or

carry up to twenty pounds occasionally and ten pounds frequently; could stand and/or walk

about six hours in an eight-hour workday; and could sit for up to six hours out of an eight

hour workday. However, the ALJ did not find the state agency’s opinions to be persuasive.

(R. 21) (citing Ex. 4A, p. 8-9). Instead, the ALJ adopted a more restrictive view of

Plaintiff’s limitations, citing Dr. Williams’s consultative examination and the Plaintiff’s

treatment records indicative that Plaintiff would be unable to effectively use tools such as

a hammer with his dominant right upper extremity due to his reduced range of motion in

the right shoulder. (R. 20) (citing Ex. 11F, p. 2). The ALJ found Dr. Williams’s more recent

opinion to be consistent with Dr. Nonweiler’s objective examination findings. Id.

iv. Assessment of Symptoms

The ALJ’s decision discussed the medical evidence supporting the RFC

determination. The ALJ found that Plaintiff’s medically determinable impairments could

reasonably be expected to cause his symptoms, but that the Plaintiff’s statements concerning

the intensity, persistence and limiting effects of his symptoms were not entirely consistent

with the medical evidence and other evidence in the record. (R. 22). Specifically, the ALJ

found that Plaintiff’s testimony alleging substantial problems caused by his foot and spine

was not fully supported by the evidence. Id. The ALJ specifically noted evidence showing

that Plaintiff returned to work after his back and foot surgeries and that he only stopped

working completely when he injured his shoulder. Id. Ultimately, the ALJ assessed the

intensity, persistence, and limiting effects of Plaintiff’s symptoms and found that Plaintiff

can perform light work with limitations, consistent with the RFC. Id.

v. Past Relevant Work

The ALJ found that, with the RFC above, Plaintiff is capable of performing his past

relevant work as a Customer Service Representative, (DOT # 239.362-014, sedentary, SVP

5 skilled). Id. However, based on the VE’s testimony, the ALJ also found that Plaintiff

cannot return to his other past relevant work. (R. 23). The ALJ thus proceeded to make

alternative findings at step five.

E. Step Five

At Step Five, the ALJ determined that Plaintiff is capable of making a successful

adjustment to other work that exists in significant numbers in the national economy, given

Plaintiff’s age, education, work experience, and RFC. (R. 24). The ALJ cited the VE’s

testimony that with the RFC the ALJ found at step four, an individual

would be able to perform the requirements of representative occupations

such as Furniture Rental Clerk , [Dictionary of Occupational Titles] (DOT

# 295.357-018, Light, [specific vocational preparation (SVP)] 2

Unskilled, 33,000 jobs nationally), Counter Clerk (DOT 249.366-010,

Light, SVP 2 Unskilled, 124,000 jobs nationally), and Usher (DOT

344.677-014, Light, SVP 2 Unskilled, 102,000 jobs nationally).

(R. 24). Accordingly, the ALJ found at step five that Plaintiff is not disabled. Id.

IV. Discussion

Plaintiff alleges two points of error: (1) the ALJ failed to perform a proper

determination of the consistency of Plaintiff’s testimony with the evidence of record; and

(2) the ALJ failed to adequately consider Plaintiff’s obesity. Defendant contends the ALJ’s

evaluation of symptoms was reasonable and supported by substantial evidence. Plaintiff’s

specific arguments are addressed below.

A. Intensity, Persistence, and Limiting Effects of Symptoms

An ALJ is required to evaluate the claimant’s statements about the intensity,

persistence, and limiting effects of alleged symptoms. SSR 16-3 outlines the process an

ALJ must follow in evaluating such statements. 2017 WL 5180304 (2017); see also 20

C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3).

The determination or decision must contain specific reasons for the

weight given to the individual’s symptoms, be consistent with and

supported by the evidence, and be clearly articulated so the

individual and any subsequent reviewer can assess how the

adjudicator evaluated the individual’s symptoms.

2017 WL 5180304 at *10. The ALJ must explain “the link between the evidence and

credibility determination.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).1 However,

“[c]redibility determinations are peculiarly the province of the finder of fact”—that is, the

ALJ, not the court. Id. “So long as the ALJ sets forth the specific evidence he relies on in

evaluating the claimant’s credibility, the dictates of Kepler are satisfied.” Qualls v. Apfel,

206 F.3d 1368, 1372 (10th Cir. 2000); see also SSR 16-3p, 2016 WL 1237954.

Under Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), in evaluating a claimant’s

statements regarding pain, the ALJ “must consider (1) whether [a c]laimant established a

pain-producing impairment by objective medical evidence; (2) if so, whether there is a

‘loose nexus’ between the proven impairment and the [c]laimant’s subjective allegations

of pain; and (3) if so, whether, considering all the evidence, both objective and subjective,

[the c]laimant’s pain is in fact disabling.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th

Cir. 1993) (internal citation omitted).

1 See Social Security Ruling (SSR) 16-3p, 2016 WL 1237954 (explaining purpose of

superseding ruling as “eliminating the use of the term ‘credibility’ from [the

Commissioner’s] sub-regulatory policy, as our regulations do not use this term,” and

“clarify[ing] that subjective symptom evaluation is not an examination of an individual’s

character”).

When determining the credibility of pain testimony, the ALJ should

consider such factors as “the levels of medication and their

effectiveness, the extensiveness of the attempts (medical or

nonmedical) to obtain relief, the frequency of medical contacts, the

nature of daily activities, subjective measures of credibility that are

peculiarly within the judgment of the ALJ, the motivation of and

relationship between the claimant and other witnesses, and the

consistency or compatibility of nonmedical testimony with objective

medical evidence.

Id. at 1489 (internal citations omitted); see also Keyes-Zachary, 695 F.3d at 1167 (holding

that in evaluating whether a claimant’s alleged pain is disabling, an ALJ should consider

“a claimant’s persistent attempts to find relief for h[is] pain and h[is] willingness to try any

treatment prescribed, regular use of crutches or a cane, regular contact with a doctor, and

the possibility that psychological disorders combine with physical problems,” as well as

“the claimant’s daily activities, and the dosage, effectiveness, and side effects of

medication.” (citing Luna, 834 F.2d at 165-66 (internal quotation marks omitted)).

Plaintiff argues that the ALJ did not properly consider Plaintiff’s testimony that he

needs to recline a significant portion of the day to relieve his pain. Plaintiff contends that

such error is harmful, because Plaintiff’s back pain requires him to take unscheduled breaks

during the day, and the VE testified that such a restriction would eliminate all jobs within

Plaintiff’s RFC. (See R. 55). Plaintiff testified at the hearing that he cannot sit or stand too

long because of back pain, and that “[t]he only way [to] eliminate some of the pain is by

laying down and having [his] feet propped up.” (R. 40). Additionally, in his Adult Function

Report, Plaintiff stated that he is “not able to sit or stand for any length of time” and that

he “sits until starts[sic] hurting & lays down for a while” during the day. (R. 203-204).

In his decision, the ALJ explained why he found that the objective medical evidence

in Plaintiff’s file does not support the severity of his alleged symptoms. Specifically, the

ALJ noted that Plaintiff’s “testimony . . . alleged substantial problems caused by his foot

and spine that were not fully supported by the evidence.” (R. 22). The ALJ then cited details

from Plaintiff’s medical records. The ALJ noted that during Dr. Williams’s June 20, 2017

consultative examination, Plaintiff “complained of musculoskeletal problems with his

back”; Dr. Williams found “tenderness and restricted motion in the spine and right upper

extremity”; Plaintiff’s “[p]osture was bent, gait was slowed to 20% of normal speed, and

[Plaintiff] exhibited difficulty rising from a seated position”; and Plaintiff’s “straight leg

raises were positive and . . . deep tendon reflexes were reduced bilaterally.” (R. 19). The

ALJ further noted that Dr. Williams reviewed Plaintiff’s abnormal lumbosacral x-rays,

which showed two bars and four screws fastened to L3-L4, and bone fusion changing notes

at L4-L5. Id. The ALJ related Dr. Williams’s diagnostic impressions “included obesity,

osteoarthritis of the bilateral knees, right rotator cuff injury, lumbar discogenic pain,

postoperative pain, lumbar spinal stenosis, debility, impaired mobility, and

postlaminectomy syndrome of the lumbar region.” Id. Notably, Dr. Williams opined that

Plaintiff has certain functional limitations using tools with his right hand, but his report did

not address any functional limitations relating to Plaintiff’s need to lie down during the

day. As the ALJ noted, Dr. Williams’s findings are consistent with an RFC of light work

with limitations. (R. 19-20). See 20 C.F.R. § 404.1529(c)(4) (Plaintiff’s statements are to

be evaluated “in relation to the objective medical evidence.”).

Although the decision does not specifically cite Plaintiff’s statement that he must

recline a significant portion of the day, the ALJ’s explanation indicates that he considered

Plaintiff’s symptom allegations, including those related to back pain. (R. 19). The ALJ also

noted Plaintiff’s testimony that, due to his back surgeries, “he cannot stand in one place for

more than 30 minutes or bend over.” Id. Thus, the ALJ’s decision indicates that he applied

the proper legal standards in reviewing the evidence. See Wall, 561 F.3d at 70 (“Where, as

here, the ALJ indicates that he has considered all the evidence our practice is to take the

ALJ at his word.”).

Moreover, the ALJ’s hypothetical questioning of the VE at the hearing reflects that

he considered Plaintiff’s statements that he needs to take frequent unscheduled breaks

throughout the day. (R. 55). However, despite Plaintiff’s testimony that he reclines “[a]bout

six hours” per day (R. 40-41), Plaintiff points to no medical opinion in the record that

Plaintiff is restricted to this degree in his ability to sit. The undersigned acknowledges Dr.

Williams’s statement that Plaintiff’s

pains generally interfere with ADLs which require sitting, standing,

stooping, lifting, squatting, reaching w[ith] right hand, climbing stairs, or

participating in church, meetings, gatherings, movies, and other

social/recreational activities[,] particularly fishing, hunting, and

swimming. The pains cause him to lean on shopping carts when at

Walmart to alleviate the back pain.

(R. 509). However, this statement does not indicate that Plaintiff cannot perform work

consistent with the restricted range of light work set forth in the RFC determination.

The restricted range of light work in the RFC is consistent with multiple medical

opinions in the record, as well as with Plaintiff’s self-reported activities of daily living.

See, e.g., R. 406 (Dr. Nonweiler’s notation that Plaintiff can “return to work on restricted

duty with permanent restrictions” and “may continue protected activity”); R. 408, 412, 414,

416, 418, 420, 424 (similar notations on other occasions); R. 509 (Dr. Williams’s June

2017 opinion that Plaintiff’s pains “result in limitations of ADLs”); R. 193-202 (self-

reported activities, including performing “a little bit” of yardwork and housework, helping

with laundry, driving, going out alone and using public transportation, despite inability to

sit or stand for long periods). Accordingly, substantial evidence in the record supports the

ALJ’s credibility determination. In this instance, “Plaintiff has not directed [the court’s]

attention to any medical evidence that was disregarded” indicating that Plaintiff must

recline significant portions of the day. Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000).

Instead, Plaintiff points only to his subjective hearing testimony and written statements

about his symptoms. Absent objective medical evidence stating that Plaintiff must recline

significant portions of the day, “subjective complaints alone [are] insufficient to establish

disabling pain.” Hamilton v. Sec’y of HHS, 961 F.2d 1495, 1498 (10th Cir. 1992) (citing

Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990) (per curiam)).

The ALJ also reasonably explained “the link between the evidence and credibility

determination.” Kepler, 68 F.3d at 391. Specifically, the ALJ noted that despite Plaintiff’s

statements of disabling foot and spine pain, Plaintiff was able to continue working after his

back surgery and only stopped working after injuring his shoulder. (R. 22). As such, the

ALJ reasonably explained his conclusion that Plaintiff’s back pain is not as limiting as

alleged. See Keyes-Zachary, 695 F.3d at 1167 (citing Qualls v. Apfel, 206 F.3d 1368, 1372

(10th Cir. 2000)) (“[C]ommon sense, not technical perfection, is our guide,” therefore “so

long as the ALJ ‘sets forth the specific evidence he relies on in evaluating the claimant’s

credibility,” it is not necessary that he make a ‘formalistic factor-by-factor recitation of the

evidence.’”)). Nothing more was required. See White v. Barnhart, 287 F.3d 903, 910 (10th

Cir. 2002) (ALJ’s evaluation of symptom allegations “warrant particular deference”); see

also Lax, 489 F.3d at 1084 (“We may not displace the agency’s choice between two fairly

conflicting views, even though the court would justifiably have made a different choice

had the matter been before it de novo.”) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200

(10th Cir. 2004)).

B. Obesity

Plaintiff argues that the ALJ erred by failing to sufficiently explain how Plaintiff’s

obesity impacts his RFC, and that such failure constitutes reversible error. SSR 02-1

requires consideration of a claimant’s obesity in determining whether a claimant has

medically determinable impairments that are severe or that meet or equal a listing and in

determining the claimant’s RFC. Relevant considerations include whether a claimant’s

obesity has an adverse impact on co-existing impairments and whether it limits the

claimant’s ability to sustain activity on a regular and continuing basis during an eight-hour

workday, five days per week.2

2 SSR 02-1p was rescinded by SSR 19-2p. See 2019 WL 2374244. Though SSR 02-

1p controls in this case, SSR 19-2p contains a similar mandate to SSR 02-1p that the ALJ

“not make general assumptions about the severity or functional effects of obesity combined

with another impairment(s).” Id. at *4. Further, both rulings advise the ALJ should consider

that the “combined effects of obesity with [an]other impairment[] may be greater” than

effects of the other impairment alone. Id; 2002 WL 34686281 at *6.

Here, even though Plaintiff did not raise obesity as an alleged impairment or

limitation in his application (R. 188) or at the hearing (R. 31- 58),3 the ALJ found that

Plaintiff has severe obesity. At step three, the ALJ found Plaintiff did not have an

impairment or combination of impairments that met or medically equaled a Listing and

stated with respect to obesity:

there are no physical listings directly dealing with obesity, however, the

condition could potentially exacerbate the long-term effects and

symptoms of co-morbid physical impairments. Accordingly, obesity is to

be factored into the analysis of listings potentially met or equaled by a

claimant’s other severe physical impairments pursuant to SSR 02-lp,

addressing obesity. Here, I have considered all severe impairments in

combination with obesity and still found that the evidence does not

support a finding that the claimant’s impairments meet or equal a listing.

(R. 18). In his RFC determination, the ALJ found Plaintiff’s RFC to be a limited range of

light work with limitations, consistent with Plaintiff’s combined impairments and the

medical evidence. (R. 22). The ALJ found the opinion of Dr. Williams to be persuasive

and noted Dr. Williams’s 2017 diagnostic impression of obesity. (R. 20). Specifically, Dr.

Williams noted that Plaintiff had a family history of “overweight” and an abdominal

examination revealed Plaintiff’s “[c]entral obesity [without] masses.” (R. 510). The

assessment was “Obesity BMI 37.” (R. 511). The ALJ also noted various instances in the

medical records of Plaintiff’s elevated BMI. Id.

3 The ALJ questioned Plaintiff about his weight during the hearing. Plaintiff indicated

that he had “actually lost weight. . . . about 50 pounds.” (R. 47). Plaintiff cited the reason

for his weight loss as a lack of appetite due to pain as well as his departure from his job as

an escort driver. Id.

The ALJ’s decision must articulate how he considered the medical opinions or prior

administrative medical findings from each medical source. 20 C.F.R. § 404.1520c(b)(1).4

The most important factors for the ALJ to consider are supportability and consistency, and

the ALJ’s decision must explain how he considered those factors in determining

persuasiveness of a medical source’s medical opinions or prior administrative medical

findings. Id. § 404.1520c(b)(2). The ALJ must also consider the medical source’s

relationship with the claimant, specialization, and other factors, but the ALJ’s decision is

not required to specifically address those additional factors. Id. § 404.1520c(c).

Plaintiff relies heavily on the Tenth Circuit’s decision in Dewitt v. Astrue, 381 F.

App’x 782 (10th Cir. 2010) in arguing that the ALJ did not sufficiently explain why his

severe impairment of obesity required no limitations in his RFC. However, Dewitt is

distinguishable. In Dewitt, the court found the ALJ erred in giving “considerable weight”

to the purported testimony of a non-examining consultant in formulating the claimant’s

RFC. 381 F. App’x at 785. “But in doing so, the ALJ mistakenly believed that [the

physician] had identified obesity as one of DeWitt’s medical conditions. In fact, [the

physician] offered no opinion about the functional effects of DeWitt’s obesity . . . [h]e

simply never mentioned obesity.” Id. Therefore, the Tenth Circuit concluded that it was

error for the ALJ to rely on this testimony to satisfy his “duty to consider the effects of

DeWitt’s obesity on her other severe impairments.” Id.

4 For claims filed on or after March 27, 2017, such as Plaintiff’s claim here, the

Commission does not “defer or give any specific evidentiary weight, including controlling

weight, to any medical opinions.” 20 C.F.R. § 404.1520c(a).

Here, the ALJ considered “the entire record,” including Plaintiff’s obesity, and then

issued an RFC of light work with limitations. (R. 18). Based upon “a complete and

thorough review of the evidence in the file,” the ALJ found persuasive the diagnostic

impressions of Dr. Williams, which noted Plaintiff’s obesity and instances of elevated BMI

in determining Plaintiff’s functional abilities. (R. 20-21). The ALJ noted that he relied on

Dr. Williams’s “detailed findings” in determining Plaintiff’s RFC. (R. 21).

In this case the ALJ’s review of medical opinion evidence was in accordance with

§ 404.1520c(c). Unlike DeWitt, where the ALJ relied upon the testimony of a

nonexamining consultant who showed no awareness of claimant’s obesity, here, Dr.

Williams, as an examining consultant, specifically mentioned and diagnosed Plaintiff’s

obesity. See DeWitt, 381 Fed. App’x. at 784. At step four, the ALJ specifically cited Dr.

Williams’s findings regarding Plaintiff’s BMI and his diagnosis of obesity. (R. 19-20). The

ALJ discussed Plaintiff’s musculoskeletal limitations and found that Plaintiff can perform

light work, but can “lift no more than [20] pounds occasionally and [10] pounds

frequently”; push and pull with these limitations; “sit, stand, or walk six hours in an eight-

hour workday”; and “occasionally bend, stoop, kneel, crouch, crawl, or climb stairs.” (R.

18-22). The ALJ concluded that Plaintiff can perform light work, with these limitations

and others, and that this RFC permits him to perform past relevant work as a customer

service representative, as well as the alternative occupations identified at step five. (R. 26).

Thus, this is not a circumstance “where the Court has no way of knowing why the ALJ

included no obesity-related limitations in the RFC.” Steven D. v. Saul, No. 18-cv-330-JED-

FHM, 2020 WL 5229703, *3 (N.D. Okla. Sept. 2, 2020) (finding error in the ALJ’s

reasoning related to claimant’s obesity where the ALJ “did not discuss obesity at all.”). In

fact, the RFC includes significant non-exertional limitations, consistent with the findings

of Dr. Williams and Dr. Nonweiler, which the ALJ found persuasive. (R. 22).

Plaintiff does not identify any evidence that his obesity causes further limitations

that would preclude his performing light work with the limitations set out—to the contrary,

Plaintiff admits that he cannot say what additional functional limitations, if any, are

required due to his obesity. (Pl.’s Br., Doc. 14 at 8-9). Accordingly, the court finds that any

deficiency in the ALJ’s consideration of obesity was harmless. Compare Arles v. Astrue,

438 F. App’x 735, *12-13 (10th Cir. 2011) (unpublished) (noting that, although “[t]he ALJ

could have provided a more particularized discussion of the effects of Mr. Arles’s obesity”

on his musculoskeletal function, the Plaintiff did not “discuss or cite to any evidence

showing that obesity further limited his ability to perform a restricted range of sedentary

work,” and consequently the ALJ’s statement that he considered the SSR 02-01p criteria

“provide[d] an adequate discussion of the effect of obesity on [the] RFC”);5 see also Smith

v. Colvin, 625 F. App’x. 896, 899 (10th Cir. 2015) (unpublished) (ALJ not required to note,

for each specific piece of evidence, the absence of evidence that obesity contributed to

additional functional limitations or exacerbated any impairment); Rose v. Colvin, 634 F.

App’x 632, 637 (10th Cir. 2015) (unpublished) (no error where the ALJ did not specifically

5 Under 10th Cir. R. 32.1(A), “[u]npublished decisions are not precedential, but may

be cited for their persuasive value.”

mention obesity in the RFC, but did include specific postural limitations, and the claimant

failed to show evidence obesity required greater functional limitations); Howard v.

Barnhart, 379 F.3d 945, 948 (10th Cir. 2004) (ramifications of obesity discussed in

connection with musculoskeletal impairments).

Here, the ALJ’s decision shows that he considered the applicable criteria concerning

Plaintiff’s obesity. In addition, Plaintiff has failed to show that his obesity required greater

functional limitations than the ALJ found in the RFC. Accordingly, the court finds no

reversible error regarding the ALJ’s consideration of Plaintiff’s obesity in making the RFC

determination.

V. Conclusion

The undersigned finds the ALJ’s decision is supported by substantial evidence.

Accordingly, the decision of the Commissioner finding Plaintiff not disabled is affirmed.

SO ORDERED this 12th day of April, 2021.