                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 15a0084n.06

                                                No. 14-3417                                      FILED
                                                                                          Jan 28, 2015
                             UNITED STATES COURT OF APPEALS                           DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT

MATTHEW SHILO,                                          )
                                                        )
        Plaintiff-Appellant,                            )
                                                        )
                                                                ON APPEAL FROM THE UNITED
v.                                                      )
                                                                STATES DISTRICT COURT FOR THE
                                                        )
                                                                SOUTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL SECURITY,                        )
                                                        )
                                                                        OPINION
        Defendant-Appellee.                             )
                                                        )
                                                        )


        BEFORE:          GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge*

        JANE B. STRANCH, Circuit Judge. Claimant Matthew Shilo appeals the Social

Security Commissioner’s denial of his application for disability benefits and social security

income. The district court reviewed the Commissioner’s decision and affirmed. Shilo alleges

that the Administrative Law Judge (ALJ) erred in rejecting the opinion of Shilo’s treating

physician and in failing to consider whether Shilo’s obesity limited his ability to work. For the

reasons set forth below, we REMAND the case to the district court, to be REMANDED to the

Social Security Administration for further proceedings.




*
 The Honorable Pamela L. Reeves, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
No. 14-3417
Shilo v. Commissioner of Social Security

                                      I.      BACKGROUND

       Shilo is now 47 years old, has a G.E.D., and in the past has worked as a truck driver and

lawn care worker. Shilo is morbidly obese: he is 6 feet 3 inches and weighs approximately 430

pounds. In addition, he has a number of medical conditions, including: back pain due to spinal

stenosis; bone spurs, bone and joint degeneration, and swelling in his lower extremities; sleep

apnea and shortness of breath; hypertension; and depression.

       From December 1993 through May 1999, Shilo received Social Security benefits due to

his obesity and back problems. The benefits ended in July 1999 when he returned to work.

Since just over a year later, Shilo has sought to reclaim those benefits. He filed an application in

October 2000 that was denied in April 2001, filed again in July 2002, and was denied again in

April 2004 after an administrative hearing.

       This case constitutes Shilo’s third attempt. In December 2007, Shilo again applied for

disability insurance benefits under Titles II and XVI of the Social Security Act. 42 U.S.C. §§

401 et seq., 1381 et seq. He alleges disability since April 8, 2004. The claim was denied

initially and on reconsideration. Shilo timely appealed and requested a hearing, which was held

before an ALJ on January 11, 2011.

       The ALJ found that Shilo has several severe impairments: lumbar spine degenerative

changes, obesity, right foot arthritic changes, mild degenerative changes in the right knee,

obstructive sleep apnea, and dysthymic disorder. He determined, however, that Shilo was not

sufficiently impaired to be eligible for benefits as he had a residual capacity to do light work

with restrictions—despite multiple assessments by Dr. Rajendra K. Aggarwal, Shilo’s treating

family physician, finding that Shilo’s impairments rendered him unemployable. Shilo’s request

that the decision be reviewed was denied. Shilo then filed suit in federal district court, the


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Shilo v. Commissioner of Social Security

district court affirmed the ALJ’s decision and adopted its findings, and Shilo appealed to this

court.

         Shilo disputes the ALJ’s findings, arguing that the ALJ: (1) improperly applied the

treating physician rule and erred in rejecting Dr. Aggarwal’s assessments of Shilo’s ability to

work; and (2) did not adequately consider Shilo’s morbid obesity in the context of his analysis.

                                          II.    ANALYSIS

         A. Standard of Review

         We review de novo a district court’s decision concerning Social Security disability

benefits. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2013). In such cases, the

Commissioner determines whether a claimant is disabled under the Social Security Act and thus

entitled to benefits. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). Our

review is limited to “determining whether the Commissioner’s decision is supported by

substantial evidence and was made pursuant to proper legal standards.” Gayheart, 710 F.3d at

374 (internal citations and quotation marks omitted). Substantial evidence is defined as “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion,”

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001), and requires more than a

scintilla but less than a preponderance of evidence, Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,

241 (6th Cir. 2007). Therefore, we defer to the ALJ’s decision “even if there is substantial

evidence in the record that would have supported an opposite conclusion.” Blakley, 581 F.3d at

406 (internal citations and quotation marks omitted).        The ALJ’s decision, however, must

incorporate the correct legal analysis: “reversal is required” when “the agency fail[s] to follow its

own procedural regulation.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

“An ALJ’s failure to follow agency rules and regulations ‘denotes a lack of substantial evidence,


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Shilo v. Commissioner of Social Security

even where the conclusion of the ALJ may be justified based upon the record.’” Cole v. Astrue,

661 F.3d 931, 937 (6th Cir. 2011) (quoting Blakley, 581 F.3d at 407).

       To determine if a person is disabled within the meaning of the Social Security Act, the

ALJ must adhere to a five-step inquiry. 20 C.F.R. § 404.1520. First, if a claimant is engaged in

“substantial gainful activity,” he will not be found to be disabled. Cruse v. Comm’r of Soc. Sec.,

502 F.3d 532, 539 (6th Cir. 2007). Second, a claimant “who does not have a severe impairment

will not be found to be disabled.” Id. Third, an unemployed claimant suffering from a severe

impairment “which meets the duration requirement and which meets or equals a listed

impairment in Appendix 1 to Subpart P of the Regulations,” will be found to be disabled. Id.

Fourth, if a claimant can perform work done in the past, he will not be found to be disabled. Id.

Fifth, if a claimant cannot do his former work, the ALJ must determine if the claimant can

perform other work, taking into account factors including “age, education, past work experience

and residual functional capacity.” Id. While the claimant bears the burden in steps one through

four, the Commissioner bears the burden of identifying “a significant number of jobs in the

economy that accommodate the claimant’s residual functional capacity . . . and vocational

profile.” Coldiron v. Comm’r of Soc. Sec., 391 Fed.App’x 435, 438 (6th Cir. 2010) (quoting

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).

       B. The Treating Physician Rule and Obesity

       Shilo argues that, when assessing his residual functional capacity (RFC) for work, the

ALJ failed to follow the treating physician rule and improperly rejected Dr. Aggarwal’s

opinion—based on objective evidence in the record—that Shilo is unable to perform employable

services. Shilo also argues that the ALJ failed to conduct a “meaningful analysis” that took his




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Shilo v. Commissioner of Social Security

morbid obesity sufficiently into account at all steps of the disability inquiry. Because the latter

inquiry cannot be extricated from the former, we will consider the two issues in tandem.

       According to the treating physician rule, “[a]n ALJ must give the opinion of a treating

[physician] controlling weight if he finds the opinion ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques’ and ‘not inconsistent with the other substantial

evidence in [the] case record.” Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)). If

the ALJ decides not to give the treating physician’s opinion controlling weight, the ALJ must

still determine how much weight is appropriate by considering factors such as: “the length of the

treatment relationship and the frequency of examination, the nature and extent of the treatment

relationship, supportability of the opinion, consistency of the opinion with the record as a whole,

and any specialization of the treating physician.” Blakley, 581 F.3d at 406. Furthermore, the

ALJ must “always give good reasons in [the] notice of determination or decision for the weight”

given to the treating physician’s opinion. Id. Such “good reasons” must be “supported by the

evidence in the case record, and must be sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating source’s medical opinion and the

reasons for that weight.” Id. at 406-07 (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5

(1996). This process enables the claimant to understand the reasons underlying the disposition

of his case and permits meaningful appellate review. Wilson, 378 F.3d at 544. Agencies are

bound to follow their own regulations, and we will not hesitate to remand a Commissioner’s

opinion that fails to articulate “good reasons” for not crediting the opinion of a treating

physician. Id. at 545.

       We also have recognized that an ALJ must “consider the claimant’s obesity, in

combination with other impairments, at all stages of the sequential evaluation.” Nejat v. Comm’r


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No. 14-3417
Shilo v. Commissioner of Social Security

of Soc. Sec., 359 F.App’x 574, 577 (6th Cir. 2009). “Obesity is a complex, chronic disease

characterized by excessive accumulation of body fat.” SSR 02-1P, 2002 WL 34686281, at *2. It

must be considered throughout the ALJ’s determinations, “including when assessing an

individual’s residual functional capacity,” precisely because “the combined effects of obesity

with other impairments can be greater than the effects of each of the impairments considered

separately.” SSR 02-1p, 2002 WL 3468281, at *1. The ALJ is not required to use any

“particular mode of analysis” in assessing the effect of obesity. Bledsoe v. Barnhart, 165

F.App’x 408, 411-12 (6th Cir. 2006).

       SSR 02-1P offers detailed guidance on how to assess obesity in conjunction with other

impairments. See Norman v. Astrue, 694 F.Supp.2d 738, 741-42 (N.D. Ohio 2010) (“this is more

than a requirement that the ALJ mention the fact of obesity in passing . . .”). There are three

levels of obesity that correlate with BMI levels. The highest level is Level III, which occurs

when a claimant’s BMI is equal to or greater than 40. It is considered “‘extreme’ obesity and

represent[s] the greatest risk for developing obesity-related impairments.” SSR 02-1P, 2002 WL

34686281, at *2. Obesity “commonly leads to, and often complicates, chronic diseases of the

cardiovascular, respiratory, and musculoskeletal body systems.”     Id. at *3.   For example,

“someone with obesity and arthritis affecting a weight-bearing joint may have more pain and

limitation than might be expected from the arthritis alone.” Id. at *6. The ALJ also must

specifically take into account “the effect obesity has upon the individual’s ability to perform

routine movement and necessary physical activity within the work environment,” and consider

how “fatigue may affect the individual’s physical and mental ability to sustain work activity”—

especially in “cases involving sleep apnea.” Id. at 6.




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No. 14-3417
Shilo v. Commissioner of Social Security

       Between 2005 and 2009, Dr. Aggarwal, Shilo’s treating physician, filled out several form

assessments of Shilo, many for the Ohio Department of Job and Family Services. All of the

assessments described Shilo as unemployable due to slightly varying but generally consistent

reasons, including: spinal stenosis, hypertension, and sleep apnea; generally “poor but stable”

health; his inability to stand, walk or sit for long periods of time, usually exceeding a half-hour to

two hours; limited carrying ability (either five or six to ten pounds); inability to do simple

grasping or fine manipulations; and “markedly limited” ability to push, pull, bend or perform

repetitive foot movements. R. 8-8, Page ID 560-61; R. 8-8, Page ID 474; R. 8-8, Page ID 475;

R. 8-10, Page ID 878; R. 8-12, Page ID 1039-40. Multiple medical records from Dr. Aggarwal

and other doctors also indicate linkage between these ailments and Shilo’s extreme obesity.

       The ALJ explicitly rejected Dr. Aggarwal’s assessment that Shilo was unemployable,

citing the treating physician rule. The ALJ referred to Dr. Aggarwal’s lack of detailed, objective

findings in his assessments of Shilo’s unemployability and the lack of other objective evidence in

the record supporting the conclusion that Shilo could not do even light or sedentary work. The

ALJ pointed to several specific factors: the lack of substantial examinations by Dr. Aggarwal in

the record; the fact that Dr. Aggarwal is not an orthopedic specialist; the fact that surgery was not

indicated for Shilo’s back condition; the absence of objective evidence consistent with a serious

pain condition; and Shilo’s “normal gait” at a consultative exam and lack of a clear medical need

for a cane. The ALJ concluded that “due to [a] lack of objective medical findings as to any

serious back impairments, no deference is given to Dr. Aggarwal’s assessments.” R. 8-2, Page

ID 52-53. Having rejected Dr. Aggarwal’s opinion, the ALJ then adopted the findings of the

vocational expert who opined at Shilo’s hearing that Shilo could perform light or sedentary

work, subject to the following restrictions: the ability to stand or sit as needed and a prohibition


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No. 14-3417
Shilo v. Commissioner of Social Security

on climbing ropes, ladders or scaffolds, but allowing the occasional climbing of stairs, crawling

and kneeling.

       Shilo argues that the ALJ lacked “good reasons” for rejecting Dr. Aggarwal’s opinion.

He points to objective medical evidence provided by Dr. Aggarwal and specialists to whom he

referred Shilo, which revealed conditions including: spinal stenosis and degeneration in his

lumbar spine; degeneration, spurring and swelling in his legs, knees and feet; sleep apnea,

hypertension, and depression. He observes that Dr. Aggarwal has been the claimant’s treating

physician since at least 2003 and has seen him over fifty times, that his treatment records include

records of thorough examinations, and that Dr. Aggarwal is listed as the requesting physician for

nearly all of Shilo’s medical tests, studies, and medical imaging by other specialists, copies of

which are also included in the records. Shilo cites the state examiner’s observation that Shilo

cannot walk properly in addition to his own testimony at the ALJ hearing that he finds it difficult

and painful to walk over a block. Shilo also argues that the lack of a recommendation for back

surgery is an improper basis for discrediting Dr. Aggarwal’s opinion. All of Shilo’s arguments

are also necessarily related to his complaint that the ALJ failed to perform a “meaningful

analysis” that took his obesity into account.

       Review of Dr. Aggarwal’s records reveals that Shilo has been treated for multiple

ailments related to his obesity for many years. His treatment records for Shilo—which are in the

record and largely undated—indicate that Shilo suffered from spinal stenosis, lower back pain,

swelling and pain in his feet, gout, hypertension, sleep apnea, “GERD” (gastroesophageal reflux

disease”) and various respiratory illnesses. Over the years, Dr. Aggarwal has prescribed multiple

pain, anti-inflammatory, and blood pressure medications while instructing Shilo to lose weight

and adhere to a low calorie diet.


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No. 14-3417
Shilo v. Commissioner of Social Security

       Dr. Aggarwal is not an “orthopedic specialist,” but Shilo saw Dr. Thomas Goodall, a

neurosurgeon, in 2003. Dr. Goodall examined him thoroughly, had an MRI and lumbar CT scan

performed, and diagnosed “multiple levels of degenerative disease” as well as “some degree of

foramina stenosis.” R. 8-8, Page ID 604. He noted that Shilo “ambulates with the aid of a cane.”

R. 8-8, Page ID 604. Dr. Goodall discussed various treatment options and, because Shilo was

primarily interested in pain control, suggested that he go to a pain center. Shilo then was treated

for lower back, left knee, and hip pain by Dr. Townsend Smith at the Miami Valley Hospital

Pain Center. Dr. Smith’s records indicate that, following an MRI, Shilo was identified as

suffering from “multiple levels of degenerative disk disease and facet joint hypertrophy from L3

through S1 with moderate central stenosis at L4-5 and L3-4;” Dr. Smith listed his diagnosis as

“lumbar spinal stenosis.”     R. 8-7, Page ID 400.       Shilo indicated that Dr. Goodall had

recommended against surgery and that he wished to increase the doses of his pain medications,

ranking his pain at a ten out of ten. Dr. Smith instead recommended that Shilo continue his

current dosages and lose weight; he was also prescribed anti-inflammatory medications to

supplement pain medications already prescribed by Dr. Aggarwal. Dr. Smith eventually also

treated Shilo with steroid spinal injections for his pain. When he was treated by Dr. Goodall and

Dr. Smith, Shilo weighed 370 pounds. Dr. Smith, too, noted that Shilo used a cane.

       Other specialists have treated Shilo for sleep and mental health issues. In 2004, Dr.

Rajesh Patel treated Shilo for a sleep disorder. During his consultation with Dr. Patel, Shilo

reported frequent daytime drowsiness, instances of falling asleep at traffic lights, and constant

fatigue. At the time, Shilo’s weight was 444 pounds, with a body mass index of 55.5; a 2005

“impression” of Shilo’s medical conditions listed, in the following order: “1. Obesity.          2.

Snoring. 3. Sleep-apnea nypopnea syndrome.” R. 8-7, Page ID 413, R. 8-8, Page ID 559. Dr.


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No. 14-3417
Shilo v. Commissioner of Social Security

Patel had Shilo undergo a sleep study, diagnosed him with sleep apnea, and prescribed the use of

CPAP therapy and recommended an “attempt at weight loss.” R. 8-7, Page ID 407-415. Shilo

was initially not fully compliant with the use of his CPAP machine, although he testified at the

hearing that he uses it regularly. Even so, he characterized himself as often drowsy and stated

that he needed to take frequent naps each day to compensate for his poor sleep. As a result of his

medical and resulting financial troubles, Shilo also sought treatment for hallucinations and

depression from 2003-2005. He saw a therapist and psychiatrist at DayMont West Behavioral

Center and was prescribed anti-depressants including Lexapro and Zoloft. During at least one of

those visits he appeared to a therapist to be in “obvious physical pain” and walking with an

“uneven gait.” R. 8-7, Page ID 439.

       The medical records reveal that, over the years, Shilo had several diagnostic tests

performed. In December 2003, x-rays showed minor spurring and mild arthritic changes in both

knees. In August 2004, an x-ray of his left foot showed a small bone spur as well as significant

degenerative changes in the surrounding joints. A June 2005 x-ray of his left shoulder revealed

minimal degenerative change in the acromioclavicular joint. In December 2005, another x-ray of

his right ankle showed mild spurring and mild soft tissue swelling. X-rays of his right foot and

knee taken in April 2008 and July 2009, respectively, showed mild to moderate arthritic changes

and spurs. A CT scan of Shilo’s lumbar spine taken in December 2010 showed multilevel

degenerative changes.

       More recent hospital records establish that Shilo continued to complain of painful

swelling in his feet. He was admitted to the emergency room in October 2007 and diagnosed

with plantar fasciitis. In February 2008, Shilo went to the emergency room complaining of pain

in his left foot that was exacerbated by walking. He was diagnosed with gouty arthritis. Shilo


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No. 14-3417
Shilo v. Commissioner of Social Security

met with Dr. Jon Ryan in May 2008 to address the foot swelling issues, complaining that he was

“unable to ambulate,” and was diagnosed with “intermittent polyarticular inflammatory arthritis

with hyperuricemia,” consistent with gout. R. 8-10, Page Id 837. In 2009, hospital records

reveal that Shilo was again admitted to the emergency room on several occasions complaining of

pain in his right foot, left toe, right knee, left knee, right toe, left shoulder, as well as chest and

abdominal pain.

       Shilo saw a physical therapist in September 2009 to address his back and leg pain and

improve his walking ability, but cancelled subsequent appointments. He testified that he did

complete one round of physical therapy but had to discontinue the next round due to the loss of

his health insurance, and that walking caused him too much pain to continue. One examiner who

saw Shilo in 2007 at the request of Ohio’s Bureau of Disability Determination noted that his

“unusual morbid obesity . . . does not allow him to walk around properly.” R. 8-9, Page ID 668.

       Understood collectively, the medical records confirm the underlying premise of Dr.

Aggarwal’s assessment: that Shilo suffers from multiple ailments that cause him considerable

discomfort, most associated with his extreme obesity.          At issue is whether these ailments

collectively prevent Shilo from performing any work at all. The record indicates an error in the

making of that determination—the ALJ’s failure to consider Shilo’s extreme obesity and its

effects on his multiple ailments in a way that comports with SSR 02-1P’s guidance. This failure

colors the ALJ’s application of the treating physician rule as well as his discussion of Shilo’s

conditions overall.

       The ALJ’s comments regarding Shilo’s obesity are limited to the following: the

observation that Shilo weighed 436 pounds in October 2008; listing “obesity” as the second of

Shilo’s “severe impairments”; and the bare statement that “[Shilo’s] obesity has been considered


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No. 14-3417
Shilo v. Commissioner of Social Security

in combination with the back condition.” R. 8-2, Page ID 48. The ALJ’s conclusions do not

appropriately consider obesity-related evidence in the medical records or Shilo’s account of the

limiting nature of his extreme obesity as it relates to problems with his legs, feet, and back. For

example, the ALJ found no evidence of an “inability to ambulate effectively,” R. 8-2, Page ID

50, despite objective medical evidence that Shilo’s back, legs and feet are compromised by

spinal stenosis, degeneration in the bones and joints, bone spurs, and swelling as documented by

an MRI and x-rays and corroborated by frequent and consistent consultations with Dr. Aggarwal,

specialists, and staff at hospitals. Dr. Goodall and Dr. Smith noted that Shilo used a cane to walk

by 2003, a mental health professional noted his obvious pain while walking dating back to 2005,

and a doctor who evaluated Shilo for Ohio’s Bureau of Disability Determination in 2007 noted

his difficulty walking. Curiously, the ALJ found that Shilo could perform work when he was

allowed “the use of a cane to ambulate,” even while determining that the cane was “not shown

by the record to be medically necessary.” R. 8-8, Page ID 51, 53.

       Shilo’s ability to ambulate also should have been considered in the context of Shilo’s

body mass index (“BMI”)—a disturbing 53.7 where the cut-off for Level III obesity is 40. The

examiner for Ohio’s Bureau of Disability Determination observed that Shilo’s “unusual morbid

obesity” “does not allow him to walk around properly.” R. 8-9, Page ID 668. Shilo testified that

he can only stand for ten minutes, sit for twenty minutes, and lift about twenty pounds; he can

only climb steps if using a cane and rail. He stated that he wears knee braces and uses a cane; is

often drowsy due to his medications and lack of sleep due to sleep apnea; and suffers from

constant and intense pain in his back and legs that obliges him to frequently elevate his legs.

       Shilo qualified for social security benefits over twenty years ago due to his obesity and

back problems. Though he improved enough to return to work briefly, the ALJ discounted


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No. 14-3417
Shilo v. Commissioner of Social Security

evidence of further deterioration found in Shilo’s medical records, Dr. Aggarwal’s assessment,

and Shilo’s own testimony. Such limitations might well make it difficult for Shilo to engage in

“light work,” which “requires a good deal of walking or standing,” or even sedentary work,

which involves “a certain amount of walking and standing,” especially for the duration of an

entire eight hour work day. 20 C.F.R. § 404.1567.

       Such medical record oversights are linked to another underlying problem with the ALJ’s

analysis: the ALJ improperly concluded that Shilo could and should be penalized for failing to

follow his doctor’s instructions to lose weight. SSR 02-1p states explicitly that “[t]reatment for

obesity is often unsuccessful,” and “lost weight is often regained.” Id. at 2. As a result, the

agency “will rarely use ‘failure to follow prescribed treatment’ for obesity to deny or cease

benefits,” and “will not find failure to follow prescribed treatment unless there is clear evidence

that treatment would be successful.” Id. at *9. Such success is defined as: “expected to improve

[the obesity] to the point at which the individual would not meet our definition of disability,

considering not only obesity, but any other impairment.” Id. at *9. The ruling also contemplates

multiple justifications for failing to follow prescribed treatment, including religious objections,

an inability to afford prescribed treatment and the lack of free community resources, as well as

reluctance to attempt treatments that entail a high degree of risk. Id. at *10. “Most insurance

plans and Medicare do not defray the expense of treatment for obesity,” the ruling notes. Id. at

*10. SSR 02-1p concludes: “Because of the risks and potential side effects of surgery for

obesity, we will not find that an individual has failed to follow prescribed treatment for obesity

when the prescribed treatment is surgery.” Id. at *10.

       Yet when the ALJ considered the treatments for Shilo’s obesity, he cited “no evidence of

any physical therapy, work hardening program, etc., or any weight loss program pursued,” as


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Shilo v. Commissioner of Social Security

well as claimant’s comment that “his family doctor has recommended weight loss and offered a

referral to a gastric specialist, but he has not pursued this.” R. 8-2, Page ID 53. In light of such

evidence, the ALJ determined that “the treatment record simply does not corroborate the severity

of claimant’s allegations,” observing that “there is no evidence that doctors told him to take it

easy, sit all day, or not do any significant activities.” The Commissioner’s brief spells out the

implication more fully: “Since Shilo refused to lose weight even though he knew that it was

aggravating his condition . . . the ALJ reasonably concluded that his conditions were not as

limiting as he alleged.” Appellee Br. at 29. But Shilo’s inability or alleged lack of effort to lose

weight does not reasonably lead to the conclusion that his conditions are not limiting.

       Even though his doctors prescribed weight loss, moreover, SSR 02-1p makes it clear that

the ALJ cannot penalize Shilo for failing to lose weight. At issue is not Shilo’s “refusal” to lose

weight but his inability to do so—a symptom itself of obesity. The ALJ should “not find failure

to follow prescribed treatment unless there is clear evidence that treatment would be

successful”—and no evidence exists in the record that any doctor envisioned that Shilo would

successfully lose so much weight. In addition, Shilo offered valid justification for failing to

complete physical therapy, citing its high cost and his loss of insurance. His failure to pursue

gastric bypass surgery also cannot be used against him, in light of its attendant risks. Given SSR

02-1p’s directive, the ALJ erred not only in his analysis of Shilo’s failure to lose weight, but also

in using such evidence to discredit Shilo’s credibility more generally—especially his reports of

pain associated with walking and standing—and by implication, Dr. Aggarwal’s assessment of

Shilo’s physical capacity for work as well as copious medical records indicating that Shilo has

difficulty walking, standing and sitting without pain.




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       In sum, the ALJ’s analysis uses Shilo’s inability to lose weight against him, denying him

benefits because he suffers from obesity—even though morbid obesity is one ground of his

disability claim. The Social Security’s own rulings, however, explicitly forbid this kind of

reasoning. Rather, the ALJ must “follow agency rules and regulations,” especially where a

failure to do so leads to an improper discounting of objective medical evidence as well as

claimant testimony. Cole, 661 F.3d at 937. Especially in close cases such as this one, it is

critical that all the medical evidence be assessed and that such assessment take into account the

Social Security Administration’s published guidance. The case will be remanded to do so.

                                        III.   CONCLUSION

       For the foregoing reasons, we REMAND this case the district court, with instructions that

the court in turn REMAND claimant’s case to the Commissioner for further proceedings

consistent with this opinion.




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