Parker v. Social Security Administration

Filing 15

MEMORANDUM OPINION AND ORDER OF REMAND finding that the decision of the Commissioner is not supported by substantial evidence. The Commissioner's decision is reversed and remanded for action consistent with this opinion. This is a "sentence four" remand. The oral argument scheduled for September 24, 2015, is canceled. Signed by Magistrate Judge Beth Deere on 06/15/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
VIRGINIA PARKER
V.

PLAINTIFF
CASE NO.: 5:14CV00391 BD

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER OF REMAND
Plaintiff Virginia Parker has appealed the final decision of the Commissioner of
the Social Security Administration denying her claim for supplemental security income.
Both parties have submitted appeal briefs and the case is ready for decision.1
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and free of legal
error. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997); see also 42 U.S.C. §§ 405(g). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257
(8th Cir. 1996). In assessing the substantiality of the evidence, the Court has considered
evidence that detracts from the Commissioner’s decision as well as evidence that supports
it.

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#5)

The parties have consented to the jurisdiction of the Magistrate Judge. (Docket

Ms. Parker alleged she became limited in her ability work by heart problems,
anemia, hypoglycemia, breathing problems, numbness in the extremities, vision problems,
chest pain, and shoulder pain.2 (SSA record at 55) After conducting a hearing, the
Administrative Law Judge (“ALJ”) concluded that Ms. Parker had not been under a
disability within the meaning of the Social Security Act at any time from December 19,
2011, through June 14, 2013, the date of his decision. (Id. at 16, 26) On September 5,
2014, the Appeals Council denied the request for a review of the ALJ’s decision, making
the ALJ’s decision the final decision of the Commissioner. (Id. at 1-6) Ms. Parker then
filed her complaint initiating this appeal. (Docket #2)
Ms. Parker was almost 49 years old at the time of the hearing and had graduated
from high school. She did not have any past relevant work. (Id. at 35) The ALJ found
that Ms. Parker had never engaged in substantial gainful activity. (Id. at 17) He found
that she had severe impairments: congenital heart impairment, congestive heart failure,
coronary artery disease, and cardiomyopathy. (Id. at 17) He further found that she did
not have an impairment or combination of impairments that met or equaled a Listing.
(Id.) He judged Ms. Parker’s allegations regarding the intensity, persistence, and limiting
effects of her symptoms were not entirely credible. (Id. at 20)

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Ms. Parker’s prior applications were denied on July 29, 1999, December 7, 2001,
and January 11, 2008. (SSA record at 133-34)
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Based on these findings, the ALJ concluded that Ms. Parker retained the residual
functional capacity (“RFC”) to perform a full range of sedentary work. (Id. at 17-21)
The ALJ concluded that Ms. Parker did not have any past relevant work and, relying on
the Medical-Vocational Guidelines (“Guidelines”) as a framework for decision making,
concluded she was not disabled within the meaning of the Act. (Tr. 21-22)
The Medical-Vocational Guidelines
Ms. Parker argues that the ALJ erred by relying on the Guidelines rather than
testimony from a vocational expert at step five of the sequential evaluation process. The
Commissioner responds that the ALJ considered Ms. Parker’s nonexertional impairments,
and that he could rely on the Guidelines because he had concluded that Ms. Parker was
able to perform a full range of sedentary work.
The general rule is that an ALJ must utilize a vocational expert, rather than rely on
the Guidelines, where a claimant suffers from non-exertional impairments that limit her
ability to perform the full range of guideline work. Brock v. Astrue, __ F.3d __, 2012 WL
1020242, *2 (8th Cir. 2012) (quoting Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir.
1993)). There is, however, a longstanding exception to the rule. An ALJ may use the
Guidelines even though there is a non-exertional impairment if the ALJ finds, and the
record supports the finding, that the non-exertional impairment does not diminish the

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claimant’s residual functional capacity to perform the full range of activities listed in the
Guidelines. Id. (quoting Thompson v. Bowen, 850 F.2d 346 (8th Cir. 1988)). The ALJ
must determine, therefore, whether a claimant’s non-exertional impairments affect her
residual functional capacity in a significant way so as to preclude her from engaging in
the exertional tasks contemplated in the Guidelines. Thompson, 850 F.2d at 350.
Ms. Parker points out that, in spite of the fact that she alleged disability in part due
to breathing problems, the ALJ did not address her non-exertional impairments related to
her moderate obstuctive lung defect and extensive emphysematous changes in her lungs.
(Id. at 55) Ms. Parker argues that, as a result of shortness of breath, she frequently needs
to sit in a reclining position. (Id. at 37)
There is substantial evidence in the record to support Ms. Parker’s complaints of
obstructive lung defect and emphysmatous changes in her lungs. During Ms. Parker’s
hospitalization for chest pain in November, 2011, Joseph Fakouri, M.D., noted that her
CT scan, with PE protocol, revealed “extensive bullous emphysematous changes through
the lung fields.” (Id. at 200-01) Emphysematous changes were again noted by
Radiologist Paolo Lim, M.D., who reviewed Ms. Parker’s CT angiography on March 25,
2012, and concluded Ms. Parker had “extensive emphysematous changes in the lungs.”
(Id. at 301-02) Moreover, in a report from March, 2012, the Commissioner’s consulting
examiner diagnosed shortness of breath with low ejection fraction. (Id. at 249)

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Further, there is substantial evidence in the record to support Ms. Parker’s claims
of limitations due to obstructive lung defect and emphysmatous changes. During visits to
her cardiologist, Sadeem Mahmood, M.D., in July and August, 2012, Ms. Parker
complained of shortness of breath and dyspnea. Dr. Mahmood diagnosed shortness of
breath. (Id. at 377-83) In a residual functional capacity questionaire, Dr. Mahmood
diagnosed left ventrical ejection fraction of 30% and heart failure. (Id. at 317) He found
that Ms. Parker had pressure in her chest that is worse with activity and that requires her
to lie down. (Id. at 317, 319) Further, he found that she should avoid concentrated
exposure to noise, have only moderate exposure to cold and wetness and should avoid all
exposure to extreme heat, humidity, fumes, odors, dusts, gases, poor ventilation, and
hazards such as machinery and heights. (Id. at 322)
In his opinion, the ALJ stated he gave the opinion “some consideration.” He did
not state, however, the weight he was giving the opinion. (Id. at 20) It was error for the
ALJ to discount Dr. Mahmood’s opinion without giving good reasons for doing so. See
20 C.F.R. § 416.927.
Here, the record bears out Ms. Parker’s allegations of shortness of breath. Her
allegations of shortness of breath were confirmed by her treating sources. (Id. at 198-99,
201, 218, 230, 245, 249, 290, 292, 299, 302, 316-17, 342, 377, 379, 381-82) In spite of
this evidence, the ALJ rejected Ms. Parker’s complaints of breathing problems, in part
because she continued to smoke after being told by treating sources to quit. While the

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ALJ may consider her noncompliance with treatment as one factor in making a credibility
determination, on this record there was also evidence that Ms. Parker had attempted to
quit smoking. (Id. at 254, 312, 377) Further, there is no indication in the record that
quitting smoking would have eliminated the breathing problems given her ongoing heart
condition and the emphysmatous changes in her lungs.3
The ALJ also rejected Ms. Parker’s complaints of breathing problems because a
technician who performed a pulmonary function test on July 2, 2012, noted that Ms.
Parker gave “poor effort.” (Id. at 333-37) In interpreting the results, however, the
technician found she had “moderate obstructive lung defect” and recommended a more
detailed pulmonary function test. (Id. at 334)
In these circumstances, the ALJ made an error of law by not considering Ms.
Parker’s emphysematous changes in the lungs and resulting breathing problems as a
condition that resulted in non-exertional impairments and thus requiring testimony from a
vocational expert. The ALJ needed vocational expert testimony to determine whether
Ms. Parker’s breathing problems diminished her capacity to perform sedentary work.
Conclusion
After consideration of the record as a whole, the Court concludes the decision of
the Commissioner is not supported by substantial evidence. The Commissioner’s

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There is no cure for emphysema. Deanna M. Swartout-Corbeil, Patricia Skinner,
& Rebecca J. Frey, Emphysema, in THE GALE ENCYCLOPEDIA OF MEDICINE 4th ed. Vol. 2
at 1523-1530 (Laurie J. Fundukian ed. 2011).
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decision is reversed and remanded for action consistent with this opinion. This is a
“sentence four” remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v.
Sullivan, 501 U.S. 89 (1991).
The oral argument hearing scheduled for September 24, 2015, is canceled.
DATED this 15th day of June, 2015.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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