Opinion
CIV-20-633-PRW
01-24-2023
SARAH SUE MCSWYNE, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff Sarah Sue McSwyne (“Plaintiff”), brings this action for judicial review of the final decision of the Commissioner of the Social Security Administration (“SSA”) denying her application for Supplemental Security Income (“SSI”). (Doc. 1). United States District Judge Patrick R. Wyrick referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3), and Fed.R.Civ.P. 72(b). (Doc. 23).
On February 16, 2022, the undersigned issued a Report and Recommendation concluding that the ALJ committed reversable error by failing to properly address Plaintiff's obesity. (Doc. 33). The Commissioner objected, arguing that the ALJ properly considered Plaintiff's obesity and arguing that even if “the ALJ committed legal error by failing to complete a more detailed analysis of ho[w] Plaintiff's obesity affected her functional limitations . . . the fact of error alone does not warrant remand because the 1 [undersigned] did not find that any lack of sufficient discussion on the matter was harmful.” (Doc. 34, at 5).
The Court adopted the undersigned's Report and Recommendation in part, agreeing that the ALJ committed legal error by “fail[ing] to provide an adequate explanation for her conclusions about whether Plaintiff's obesity did or did not cause any limitations on Plaintiff's ability to work.” (Doc. 35, at 3). But the Court referred the case back to the undersigned to “consider whether the ALJ's failure to provide an explanation for her conclusions about whether Plaintiff's obesity did or did not cause any limitations was harmless error.” (Id. at 5). As fully explained below, the undersigned finds that the ALJ committed reversable error, not harmless error, and therefore recommends that the Court REVERSE and REMAND the matter to the SSA.
I. The ALJ's Failure To Provide an Adequate Explanation for her Consideration of Plaintiff's Obesity Was Reversable Error, Not Harmless Error.
The Tenth Circuit's opinion in DeWitt v. Astrue, 381 Fed.Appx. 782 (10th Cir. 2010), squarely addresses the question of whether an ALJ's failure to explain her conclusions about obesity is harmless error or reversable error on facts nearly identical to those before the Court here. In DeWitt, the ALJ found that Plaintiff's obesity was a severe impairment, id. at 784, and limited her to sedentary work with certain restrictions, “[b]ut there [was] nothing in the decision indicating how or whether her obesity influenced the ALJ in setting those restrictions.” Id. at 785. The Court found “[r]ather, it appears that the ALJ's RFC assessment was based on ‘assumptions about the severity or functional effects of [DeWitt's] obesity combined with [her] other impairments' - a process forbidden” by SSA 2 regulations. Id. (citing SSR 02-1p, Titles II & XVI: Evaluation of Obesity, 2000 WL 628049, at *1 (Sept. 12, 2002), which was rescinded and replaced by SSR 19-2p, Titles II & XVI: Evaluating Cases Involving Obesity, 2019 WL 2374244 (May 20, 2019); however, SSR 02-1p also provided that ALJs must “explain how [they] reached [their] conclusions on whether obesity caused any physical or mental limitations,” 2002 WL 34686281, at *7 (emphasis added)).
In reversing and ordering the district court to remand the case to the Commissioner, the Tenth Circuit stated:
the district court cited several cases, including Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005), which suggest that an ALJ's failure to explicitly consider the functional effects of obesity is harmless error if the ALJ adopts the limitations suggested by doctors who were aware of the claimant's obesity. The Third Circuit has indicated, however, that Rutherford does not apply where, as here, the claimant's “obesity was urged, and acknowledged by the ALJ, as a severe impairment[.]” Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). Similarly, we have insisted on compliance with SSR 02-1p where “the ALJ failed to give adequate consideration to the effect of [the claimant's] obesity in combination with her other severe impairments.” Hamby v. Astrue, 260 Fed. App'x. 108, 112 (10th Cir. 2008); see also Baker v. Barnhart, 84 Fed. App'x. 10, 14 (10th Cir. 2003).DeWitt, 381 Fed.Appx. at 786. See also Gladys Louise J. v. Saul, 2020 WL 6318676, at *3 (D. Kan. Oct. 28, 2020) (ALJ found Plaintiff's obesity was a severe impairment; holding that “[w]hile it may be that Plaintiff's obesity does not require greater functional limitations, in light of the requirements of SSR 02- 1p and Plaintiff's height and weight, the court is unable to find harmless error in the failure to explain how obesity affected the ALJ's consideration. Remand is necessary.”); Callan v. Berryhill, 2018 WL 840026, at *3, 5 (D.N.M. Feb. 13, 2018) (ALJ found Plaintiff's obesity was a severe impairment; 3 holding that “the ALJ's failure to perform the required consideration of Plaintiff's obesity during step four of the sequential disability analysis constitutes error mandating remand;” citing DeWitt for the proposition that the “‘harmless error' rule does not apply where, as here, ‘the claimant's obesity was urged, and acknowledged by the AL J, as a severe impairment'”).
Contrast with Breath v. Colvin, No. CIV-14-444-HE, 2015 WL 5569020, at *5 (W.D. Okla. Aug. 26, 2015) (“Although the Tenth Circuit has indicated that harmless-error analysis may not be appropriate where the claimant's obesity was raised to the ALJ and was determined to be a severe impairment, see DeWitt, 381 Fed.Appx. at 786, neither of those factors applies here. Plaintiff did not claim obesity as an impairment and . . . the ALJ did not find that obesity was a severe impairment. Nor did Plaintiff testify that his weight contributed to his inability to engage in activities in any way or attribute any of [his] restrictions to obesity in [his] testimony at the hearing.”) (internal citations and quotation marks omitted), report and recommendation adopted, 2015 WL 5579821 (W.D. Okla. Sept. 22, 2015).
Here, as in DeWitt, Plaintiff's obesity was urged when her attorney asked the ALJ to consider it as an additional impairment (AR, at 33), and the ALJ in fact found Plaintiff's obesity to be a severe impairment (id. at 16). Although the ALJ stated that “the cumulative effects of the claimant's obesity have been fully considered” (id. at 19) in setting the RFC of light work, as in DeWitt, “there [was] nothing in the decision indicating how . . . [Plaintiff's] obesity influenced the ALJ in setting those restrictions.” 381 Fed.Appx. at 785. Under DeWitt, this was reversable error, not harmless error.
Moreover, Plaintiff presented evidence indicating that her obesity has an impact on her functional limitations that the ALJ failed to acknowledge. At the hearing, Plaintiff testified that she doesn't have any energy. (AR, at 46). She testified that she lives in a 4 first-floor apartment, and her friend does grocery shopping for her. (Id. at 36, 47). When asked whether her weight caused any problems for her, specifically with work activities, Plaintiff testified that she gets out of breath easily; she can't walk very far without being out of breath; and she has to stand still for about maybe five or ten minutes to catch her breath. (Id. at 43-44). However, the ALJ's opinion did not reference any of Plaintiff's statements about having no energy or getting out of breath. (See id. at 19). Plaintiff's hearing testimony is evidence supporting her claim that her obesity is disabling, which distinguishes Plaintiff's case from two other unpublished Tenth Circuit decisions cited by the Commissioner. In Smith v. Colvin, 625 Fed.Appx. 896 (10th Cir. 2015), the ALJ found that the claimant's obesity was a severe impairment but did not expressly discuss obesity in his RFC analysis. Id. at 899. But because the claimant pointed to nothing in the record affirmatively showing “that her obesity alone, or in combination with other impairments, resulted in any further limitations,” the court concluded that the ALJ had not erred in his analysis. Id. Similarly, in Razo v. Colvin, 663 Fed.Appx. 710 (10th Cir. 2016), the Tenth Circuit found that the ramifications of the claimant's obesity were “subsumed within the discussion of [his] other medical conditions,” and the claimant had failed to “discuss or cite to medical or other evidence to support his claim that his obesity was disabling.” Id. at 716.
Accordingly, the undersigned finds that the ALJ's failure to provide an explanation for her conclusions about whether Plaintiff's obesity did or did not cause any limitations was reversable error, not harmless error. In making this determination, the undersigned need not go on to consider whether any of Plaintiff's other grounds for appealing the ALJ's 5 decision require reversal and remand. (See Doc. 35, at 5); Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand.”).
II. Recommended Ruling and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Court REVERSE the decision of the Commissioner and REMAND the matter for further proceedings.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court on or before February 7, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises the parties that failure to file a timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred. 6