Kelly v. Social Security Administration Commissioner
FINAL JUDGMENT REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING THIS CASE TO THE COMMISSIONER FOR FURTHER CONSIDERATION PURSUANT TO SENTENCE FOUR of 42 U.S.C. 405(g). Signed by Honorable Mark E. Ford on February 13, 2017. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SHELIA S. KELLY
CIVIL ACTION NO. 2:16-cv-2027-MEF
NANCY A. BERRYHILL, Acting
Commissioner Social Security Administration1
This cause is before the Court on the Plaintiff’s complaint for judicial review of an
unfavorable final decision of the Commissioner of the Social Security Administration denying her
claim for disability benefits. The parties have consented to entry of final judgment by the United
States Magistrate Judge under the provisions of 28 U.S.C. § 636(c). Counsel for the Plaintiff
appeared in person and requested that argument be waived. The Defendant agreed, and the Court
commenced with entry of its ruling in open court. The Court, having reviewed the administrative
record, the briefs of the parties, and the applicable law, finds as follows, to-wit:
Consistent with the Court’s ruling from the bench, the decision of the Commissioner of
Social Security is reversed and remanded for further proceedings pursuant to sentence four of 42
U.S.C. § 405(g).
The ALJ dismissed the spirometry test results dated July 2013 for the following reasons:
(1) there appears to be a discrepancy between the claimant’s height as calculated for the spirometry
and the height measured at Dr. Meade’s office; (2) it is unclear from the test results if the height
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
measurement used was with or without shoes; (3) the test appears to include the results of only one
expiratory maneuver, as opposed to the three required under the listing; (4) the test does not include
the dose and name of the bronchodilator administered; (5) the results do not indicate the
manufacturer and model number of the device used to measure and record the spirogram; (6) the
test does not include a statement that the device was accurately calibrated; and, (7) the test contains
no information concerning the claimant’s understanding and level of effort and/or cooperation
during the test. Unfortunately, the ALJ made no attempt to re-contact Dr. Meade and/or the Fort
Smith Lung Center in an attempt to clarify or remedy any of these deficiencies. Further, in the
alternative, the ALJ failed to order repeat spirometry testing to determine Plaintiff’s true level of
lung functioning. Because the test results do seem to indicate that Plaintiff’s level of lung
functioning fell within the severity level anticipated by the listings, the undersigned finds that
remand is necessary to allow the ALJ to re-contact Dr. Meade and his facility in an attempt to
obtain his opinion as to the Plaintiff’s RFC and how far back the Plaintiff’s limitations were likely
to have reached.
On remand, the ALJ is directed to re-contact Dr. Meade and his facility in an attempt to (1)
clarify the discrepancy regarding Plaintiff’s height and to determine whether the measurement was
taken with or without shoes; (2) to determine whether the test included one or multiple expiratory
maneuvers and to obtain the results of any additional maneuvers; (3) to obtain the name and dosage
of the bronchodilator administered; (4) to obtain the manufacturer and model number of the device
used to measure and record the spirogram; (5) to obtain a statement that the device was calibrated
accurately; and, (6) to obtain a statement concerning Plaintiff’s understanding and level of effort
and/or cooperation during the test.
If the ALJ is unable to obtain clarification from Dr. Meade and/or the Fort Smith Lung
Center, the ALJ is directed to order a consultative pulmonary exam, complete with additional
spirometry testing. The ALJ should forward all of the records concerning the Plaintiff’s COPD,
including the results of the spirometry test at issue, to the consultative examiner for an opinion as
to the Plaintiff’s RFC and how far back the Plaintiff’s limitations were likely to have reached.
IT IS SO ORDERED AND ADJUDGED on this the 13th day of February, 2017.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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