Urbina-Escobar v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER - It is ordered that the Commissioner's decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING this case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 07/29/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TONIA URBINA-ESCOBAR,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 13-1226-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under
sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the Commissioner’s failure to
discuss Plaintiff’s prescribed use of oxygen, the court ORDERS that the decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith.
I.

Background
Plaintiff applied for SSI benefits alleging disability beginning January 1, 2003. (R.

13, 105-10). In due course, Plaintiff exhausted proceedings before the Commissioner,
and now seeks judicial review of the final decision denying benefits. She claims that the

Administrative Law Judge (ALJ) erred in evaluating her obesity; did not accord sufficient
weight to her treating physician’s opinion, and placed too much weight on the medical
expert’s opinion; and failed to discuss her use of oxygen as prescribed, both while at rest
and with activity. The Commissioner argues that the ALJ properly considered Plaintiff’s
obesity, properly weighed the medical opinions and supported his evaluation with the
record evidence, and properly considered Plaintiff’s prescribed use of oxygen even
though he did not mention that use in the decision.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
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determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 416.920; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a
determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 416.920(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
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through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds that remand is necessary because in his decision the ALJ did not
discuss Plaintiff’s prescribed use of oxygen. This error requires remand for the
Commissioner to reassess Plaintiff’s RFC. Because assessment of RFC requires
consideration of all of the evidence, including the medical opinions and the effects of
Plaintiff’s obesity on her capabilities, the court will not evaluate the errors alleged by
Plaintiff with regard to consideration of the medical opinions or with regard to
consideration of obesity. Plaintiff may make those arguments to the Commissioner on
remand.
II.

Discussion
On June 7, 2011, the ALJ held a hearing at which Plaintiff and a vocational expert

testified. (R. 32-56). At the end of the hearing, the ALJ determined that he was going to
send an interrogatory to a medical expert because the results of Plaintiff’s breathing tests
“are very close to meeting a listing.” (R. 55). He expressed his hope that the process
would be completed and that Plaintiff would receive the written decision “within the next
four to six weeks.” Id. While awaiting the decision, Plaintiff was admitted to the hospital
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due to hypoxia on July 20, 2011 and discharged on July 25, 2011. (R. 398-401). At
discharge she was prescribed the use of oxygen at a rate of 3 liters per minute at rest and
6 liters per minute with activity. (R. 400). On August 31, Plaintiff’s counsel forwarded
the records regarding Plaintiff’s hospitalization to the ALJ. (R. 397-412). Those records
were admitted into the record by the ALJ, and he discussed a pulmonary examination
made on July 21, 2011 (during Plaintiff’s hospitalization) in his decision. (R. 21) (citing
Ex. 23F/7 (R. 403)). The ALJ issued his decision on October 21, 2011. (R. 13-26).
In the decision, the ALJ found that one of Plaintiff’s severe impairments is chronic
obstructive pulmonary disease (COPD). (R. 15). During his step three evaluation, the
ALJ considered whether Plaintiff’s condition meets or equals the criteria of either of two
respiratory system impairment listings--Listing 3.02, chronic pulmonary insufficiency,
and Listing 3.09, cor pulmonale. Id. at 16. He determined that Plaintiff’s condition does
not meet Listing 3.02 because she “does not have FEV [(forced expiratory volume)]
values equal to or less than 1.65; nor chronic impairment of gas exchange; nor
significantly abnormal arterial blood gas values,” and that her “impairment does not meet
[(Listing 3.09)] because she does no have a mean pulmonary artery pressure greater than
40 mm HG, or arterial hypoxia.” Id.
In assessing RFC, the ALJ found that Plaintiff must avoid “more than moderate
exposure to pulmonary irritants” (R. 18), and he noted:
While a pulmonary examination conducted July, 21, 2011 indicated lungs
with decreased air entry bilaterally, there was no evidence of murmur,
bruits, gallops or rubs, and the heart was regular in rate and rhythm (Exhibit
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23F/7 [(R. 403)]). However, taking into account such symptoms, the
claimant should not perform work that requires concentrated exposure to
temperature extremes, vibration, work hazards, and more than moderate
exposure to pulmonary irritants.
(R. 21). Thereafter, the ALJ explained:
respiratory examinations were generally within normal limits. Although
records from St. Joseph Hospital dated February 8, 2009 indicated that the
claimant presented with complaint of shortness of breath, an x-ray of the
chest indicated that heart size was within normal limits with coarse
peripheral1 markings bilaterally. Findings were suggestive of pneumonia,
but the lungs were otherwise clear (Exhibit 16F/7 [(R. 346)]). In fact, a
physical examination conducted as recently as November 19, 2010
indicated that lungs were clear to auscultation, respiratory effort was
normal, and the heart was regular in rate and rhythm (Exhibit 15F/6 [(R.
322)]).
(R. 21). In a final discussion of medical evidence regarding respiration, the ALJ noted:
Although the claimant does have symptoms of chronic obstructive
pulmonary disease, there is little evidence of more than a few hospital visits
for associated emergencies. Further, while records from St. Francis Family
Medicine Clinic dated February 23, 2010 indicated that the claimant
presented with complaint of increasing difficulty breathing, these records
further noted that the claimant was not using her CPAP [(continuous
positive airway pressure)] machine as much as she should (Exhibit 5F/2
[(R. 262)]).
(R. 22).
As Plaintiff argues, the medical evidence shows that Plaintiff was prescribed the
use of oxygen when she was discharged on July 25, 2011. (R. 400) (“She is to wear her

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The x-ray report to which the ALJ cited actually reads “coarse perihilar markings
bilaterally.” (R. 346). “Perihilar” means “around a hilum.” Dorland’s Illustrated
Medical Dictionary 1402 (30th ed. 2003). “Hilum” means “a depression or pit at the part
of an organ where vessels and nerves enter.” Id. at 852.
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oxygen at 3 liters per minute via nasal cannula when at rest and increase to 6 liters per
minute with activity.”). Although this evidence was produced after the hearing, it was
produced almost three months before the decision was issued, it was included in the
administrative record, and the ALJ cited to a portion of this exhibit in his decision and
noted the report of a pulmonary examination completed during this hospitalization. (R.
21) (citing Ex. 23F.7 (R. 403)).
But, the ALJ said nothing regarding the fact that Plaintiff was prescribed the use of
oxygen. The Commissioner notes the ALJ’s discussion of the pulmonary examination
(which the ALJ noted showed no evidence of murmur, bruits, gallops or rubs, and that
Plaintiff’s heart was regular in rate and rhythm, and which the ALJ asserted he took into
account in limiting Plaintiff’s exposure to pulmonary irritants), and argues that the ALJ
properly considered this evidence. This is so, in the Commissioner’s view, because
although Plaintiff had this hospital admission with shortness of breath, her respiratory
functioning was generally normal, and medical record from October 2011 (after her
hospital admission) indicate respiratory functioning was normal and “the evidence does
not indicate that she was using oxygen every day.” (Comm’r Br. 11) (citing R. 416-17).
The court disagrees with the Commissioner’s argument. As the Commissioner
argues, an ALJ need not discuss every piece of evidence in the record. Clifton v. Chater,
79 F.3d 1007, 1009-1010 (10th Cir. 1996). However, he must discuss uncontroverted
evidence he chooses not to rely upon, or significantly probative evidence he rejects. Id.
Moreover, he must provide a narrative discussion in his RFC assessment which includes
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an explanation how any ambiguities and material inconsistencies in the evidence were
considered and resolved. Soc. Sec. Ruling (SSR) 96-8p West’s Soc. Sec. Reporting
Serv., Rulings 149 (Supp. 2013). Evidence that Plaintiff has been prescribed the use of
oxygen is significantly probative evidence supporting her assertion that she is unable to
walk for any significant period of time. But, the ALJ did not discuss that evidence. That
is error requiring remand for a proper consideration and discussion.
Plaintiff’s use of oxygen also creates an ambiguity regarding her ability to perform
the jobs suggested by the vocational expert because the hypothetical questions presented
to that expert did not include any mention of oxygen use. But, the ALJ did not explain
how he resolved this ambiguity. The Commissioner’s attempt to resolve this ambiguity
or to explain why this evidence is not significantly probative in the circumstances is
without merit. The Commissioner is correct that on October 11, 2011, Plaintiff’s
respiratory function was described as “normal to inspection” (R. 417), and the treatment
note for that date does not indicate that she was using oxygen. (R. 416-18). However,
that treatment note does not indicate that she was not using oxygen either. Id. And, the
reason for Plaintiff’s visit that day was to follow-up for vaginal bleeding. (R. 416). The
treatment note does not reveal that there was a need to indicate that Plaintiff was using
oxygen that day. Moreover, on the very next day, there is a note indicating that Plaintiff
“wants to get a portable O2 machine.” (R. 419). On October 20, 2011 Plaintiff returned
to the doctor’s office complaining of shortness of breath, and that treatment note indicates
that Plaintiff “is on 6 L of O2 normally for ambulation and 3 L at rest.” (R. 421). The
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record does not support the Commissioner’s argument, and neither that rationale nor any
discussion of oxygen use was presented in the decision. Remand is necessary for the
Commissioner to consider Plaintiff’s oxygen use, and explain how that fact affects her
ability to work.
IT IS THEREFORE ORDERED that the Commissioner’s decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING this case for further proceedings consistent herewith.
Dated this 29th day of July 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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