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Kennedy v. Saul

United States District Court, N.D. Indiana, Hammond Division

December 6, 2019

ANDREW M. SAUL, Acting Commissioner of the Social Security Administration, Defendant.



         Anita Kennedy appeals the Social Security Administration's decision to deny her protective applications for disability insurance benefits and supplemental security income. Kennedy suffers from several severe medical issues including osteopenia, osteoarthritis, and degenerative changes to her spine. [Tr. 132.][1] An administrative law judge found that Kennedy was not disabled and that she had the residual functional capacity (RFC) to perform light work with some restrictions. The ALJ also found Kennedy capable of performing her past relevant work as a counter attendant.

         Kennedy sets forth a trio of arguments: (1) the ALJ's RFC assessment is not supported by substantial evidence because it failed to take into consideration her obesity; (2) the analysis of her subjective symptoms was legally insufficient; and (3) the finding that she could perform her past relevant work was not supported by substantial evidence. Because I find the ALJ's failed to properly consider Kennedy's obesity in formulating her RFC, I will REVERSE the ALJ's decision and REMAND on this issue.


         Let's start by looking at the legal framework. My role is not to determine from scratch whether or not Kennedy is disabled. Rather, I only need to determine whether the ALJ applied the correct legal standards and whether the decision is supported by substantial evidence. See 42 U.S.C. § 405(g); Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012); Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). My review of the ALJ's decision is deferential. This is because the “substantial evidence” standard is not particularly demanding. In fact, the Supreme Court announced long ago that the standard is even less than a preponderance-of-the-evidence standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Of course, there has to be more than a “scintilla” of evidence. Id. This means that I cannot “simply rubber-stamp the Commissioner's decision without a critical review of the evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Nonetheless, the review is a light one and the substantial evidence standard is met “if a reasonable person would accept it as adequate to support the conclusion.” Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004).

         Kennedy suffers from severe joint pain and skeletal issues. In particular, the ALJ found that Kennedy has the severe impairments of osteopenia which is the medical term for a weakening in her bones. She also has severe impairments of osteoarthritis and the late-effects of a heal fracture, as well as degenerative changes to the thoracolumbar spine, and bilateral ulnar palmar and right median palmar neuropathies. [Tr. 132.] Kennedy suffers from multiple other non-severe impairments, including a headache disorder, hypothyroidism, hyperlipidemia, hypertension, and obesity. [Tr. 132.] The ALJ determined that Kennedy had the RFC:

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she is further limited to work requiring no climbing of ladders, ropes, or scaffolds, no more than occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling, no more than frequent handling, fingering, and feeling with the bilateral upper extremities, and which does not require work at unprotected heights, with moving mechanical parts, or motor vehicle operation.

[Tr. 134.]

         In analyzing whether this RFC is proper, my focus will be on the ALJ's analysis of Kennedy's obesity. The ALJ does not specifically mention Kennedy's height, weight or BMI in her opinion. But as documented in the record, Kennedy is 5'1" or 5'2" and her weight fluctuated from 172 pounds to 180 pounds. [Tr. 360, 456, 486.] Her BMI was in the range of 31-33.9. Id. Of the three levels of obesity, Kennedy would therefore be characterized as the lowest, or Level I (which includes BMIs of 30.0-34.9). SSR 02-1p, 2002 WL 34686281, at *2 (2002). “These levels describe the extent of obesity, but they do not correlate with any specific degree of functional loss.” Id. During the hearing before the ALJ, Kennedy testified that she gets tired very easily, she has soreness in her hips, back, and hands, and she can't stand or sit for very long. [Tr. 29, 32, 41.]

         The ALJ found Kennedy's obesity was a non-severe impairment, rationalizing in entirety as follows:

The evidence indicates that at all times relevant to this decision, the claimant has been obese, however, the claimant's obesity pre-dates her alleged onset date and body-mass index has remained essentially unchanged in the most recent objective medical evidence despite repeated directives by treating physicians to lose weight (Exhibits 1F, 2F, 4F, 7F, 8F). In light of the foregoing evidence of the longstanding nature of this impairment, it is deemed non-severe in nature. Nevertheless, the undersigned has considered the exacerbatory impact of the claimant's obese state in assessing impairment severity, Listing level severity, and residual functional capacity consistent with the directives set forth in Social Security Ruling 02-1p on obesity.

[Tr. 133 (emphasis added).] There are several problems with the terse analysis of Kennedy's obesity which require reversal.

         First of all, I don't understand how the fact that Kennedy's obesity was “longstanding in nature” results in the finding that it is non-severe in nature, without any further explanation by the ALJ. Isn't obesity, by its nature, often enduring over time? And indeed, the regulations mandate that obesity be viewed over the long run: the ALJ “will consider the individual to have obesity as long as [] her weight or BMI shows essentially a consistent pattern of obesity.” SSR 02-1p, 2002 WL 34686281, at *4. How could the fact that claimant has been obese “at all times relevant to this decision” seemingly cut against Kennedy? I guess it is possible that the ALJ thought because Kennedy's weight was relatively stable, and her obesity predated her alleged onset date, the obesity could not be a contributing factor to her alleged disability. But the ALJ failed to explain this, and I am left impermissibly speculating about her thought process. See 20 C.F.R. § 404.1545(a) (an ALJ must consider all of the evidence and explain her decision so that it may be meaningfully reviewed.). If the ALJ thought Kennedy's obesity did not result in limitations on her ability to work, she should have explained how she reached that conclusion. See Arnett v. Astrue, 676 F.3d 586, 593 (7th Cir. 2012); Aranda v. Berryhill, 312 F.Supp.3d 685, 692 (N.D. Ill. 2018) (remanding the claim of an obese plaintiff, noting “[t]here's not much of a logical bridge there.”).

         This cursory analysis also fails to take into account the very real possibility of obesity exacerbating over time other medical conditions, including Kennedy's hip and knee pain, decreased strength, fractured heel, arthritis, and back issues. [Tr. 66, 98, 99, 357, 367, 370, 373, 385, 398, 494-95, 499, 518-19, 537.] “According to SSR 02-1p, an ALJ should consider the effects of obesity together with the underlying impairments, even if the individual does not claim obesity as an impairment, ” Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006); see ...

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