McWhorter v. Commissioner of Social Security
DECISION AND ORDER - IT IS THEREFORE ORDERED THAT: 1. The ALJs determination that Plaintiff is not under a disability, and the resulting denials of his applications for Disability Insurance Benefits and Supplemental Security Income, are affirmed; and 2. The case is terminated on the docket of this Court. Signed by Magistrate Judge Sharon L. Ovington on 9/27/17. (pb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK ANTHONY MCWHORTER,
NANCY A. BERRYHILL,
Commissioner of the Social
: Case No. 3:16-cv-00230
: Magistrate Judge Sharon L. Ovington
: (by full consent of the parties)
DECISION AND ORDER
Plaintiff Mark Anthony McWhorter has many cardiovascular problems including,
in part, coronary artery disease, sinus tachycardia, cardiomyopathy, congestive heart
failure, moderate left ventricular hypertrophy, and chronic obstructive pulmonary disease.
He possibly had an inferior wall infarct (tissue necrosis1). And he has many other
problems: obesity, diabetes, asthma, depression, anxiety, panic disorder, and borderline
intellectual functioning. If all this was not daunting enough, he once suffered a gunshot
wound to his right leg.
Plaintiff sought assistance from the Social Security Administration by applying for
Disability Insurance Benefits and Supplemental Security Income. He asserted that he had
been under a benefits-qualifying disability starting on December 31, 2009, when he was
See Taber=s Cyclopedic Medical Dictionary, p. 1043 (19th ed. 2001).
32 years old. Administrative Law Judge (ALJ) Emily Ruth Statum concluded that
Plaintiff was not under a disability and denied his applications.
Plaintiff brings the present case challenging ALJ Statum’s decision. He contends
that she failed to properly evaluate his credibility, posed inaccurate hypothetical
questions to the vocational expert, and improperly relied on the vocational expert’s
During a hearing held by ALJ Statum, Plaintiff testified that he had last worked 3
years before the hearing. The work consisted of factory-type jobs that required him to
move heavy objects and work on assembly lines. (Doc. #7, PageID #61). He explained
that he can no longer work due to breathing problems, congestive heart failure, diabetes
and chronic leg pain caused by a gunshot wound and a motorcycle accident. Id. He’s
had right-leg pain ever since he was shot. After his motorcycle accident, his right-leg
pain became intolerable. Id. at 62. He takes pain medication—Percoset (4 times daily)
and Gabapentin (2 times daily). Id. His medication side effects include feeling tired “all
the time” and not being able to pay attention. Id.
Plaintiff no longer has a driver’s license due to physician-imposed restrictions.
He’s had fits of coughing that “literally caused [him] to pass out.” Id. at 62-63.
The ALJ observed Plaintiff had an oxygen tank with him at the hearing. Plaintiff
testified that he always uses the oxygen tank due to his chronic obstructive pulmonary
disease and congestive heart failure. Id. at 63. He explained that he experiences constant
chest pain and tightness. Id. If he needs to bend over to pick up something, he gets short
of breath. He cannot play with his daughter. He cannot walk 3 blocks without stopping
to catch his breath. If he manages to walk 3 blocks to his neighbor’s house without
stopping, he needs to sit for 5 or 10 minutes when he gets there in order to catch his
breath. Id. When he lies down he gets a sharp, stabbing pain in his leg that is constant
and makes his legs jump and cramp up. Id. at 67-68. He also has leg swelling, and he
can only be on his feet for 5 or 10 minutes at a time. He elevates his legs when his feet
are swollen. Id. at 72.
Plaintiff testified that he is always tired because he does not sleep well at night
because of pain. He naps 3 or 4 times during the day. When he takes a pain pill it
knocks him out for 30 minutes. He also gets tired from “moving about” and “just even
talking.” Id. at 68. He is short of breath and is “always fighting for air.” Id. He uses an
inhaler 2 times a day for breathing treatments. Id. at 71.
During a typical day, Plaintiff wakes his daughter up for school, and he tries to
“pick up here and there.” Id. at 64. His wife does all the household chores and his older
son cuts the grass. Id. He watches about an hour of television in the morning and tries to
read. Id. He has trouble helping his daughter with her homework. She is in fourth grade.
Id. at 64-65. He used to be able to cook and used to enjoy cooking. But, he can no
longer stand long enough to prepare a meal without his legs swelling. Id. at 66.
During the ALJ’s hearing, she asked a vocational expert a series of questions
concerning the numbers of jobs available to a hypothetical person with certain work
limitations. The vocational expert testified that, considering a hypothetical person with
the limitations the ALJ described, plus the need to elevate his legs to waist or chest level
during the workday, there would not be any jobs available to him. Id. at 78, 84. The
vocational expert further testified that if the limitations the ALJ described included the
additional limit of being off task more than 5 percent of the workday, there would be no
jobs available for such a hypothetical person. Id. at 84. And, a person needing to use an
oxygen tank would not be employable. Id. at 76.
* * *
The Social Security Act defines a “disability” as physical or mental impairments
that are both “medically determinable” and severe enough to prevent the applicant from
(1) performing his or her past job and (2) engaging in “substantial gainful activity” that is
available in the regional or national economies. See 42 U.S.C. §§ 423(a), (d), 1382c(a);
see also Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). ALJ Statum
concluded that Plaintiff’s medically determinable impairments fell outside this definition
by conducting the 5-Step evaluation required by social security law. See 20 C.F.R. §
404.1520(a)(4). Her more significant findings began at Step 2 where she found that
Plaintiff had many severe impairments: coronary artery disease; diabetes mellitus;
history of gunshot wound to right leg; asthma; obesity with a Body Mass Index of 32.59;
sinus tachycardia; congestive heart failure; chronic obstructive pulmonary disease;
moderate left ventricular hypertrophy; status post possible inferior wall infarct;
cardiomyopathy; depression; anxiety; panic disorder; alcohol-related disorder, NOS; and
borderline intellectual functioning. (Doc. #7, PageID #40). At Step 3, the ALJ
concluded that Plaintiff’s impairments did not automatically constitute a disability. Id. at
At Step 4, the ALJ assessed Plaintiff’s residual functional capacity or the most he
could do despite his impairments. See 20 C.F.R. § 404.1545(a); see also Howard v.
Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). Doing so, the ALJ found that
Plaintiff could perform sedentary work with the following limitations: “(1) lift and/or
carry ten pounds occasionally; (2) sit about six hours in an eight-hour workday; (3) stand
and/or walk about two hours in an eight-hour workday; (4) with no limitations pushing
and/or pulling; (5) he can climb stairs or ramps frequently; (6) occasionally climb
ladders, ropes or scaffolds; (7) he should avoid concentrated exposure to the extremes of
heat or cold, or humidity; (8) no concentrated exposure to flumes, odors, dust, gases,
environmental pollutants, or poor ventilation; (9) unskilled work that requires performing
routine, one to three-step tasks of repetitive nature, in a work setting with no demand for
fast production speed; and (10) no more than occasional contact with co-workers and the
public.” (Doc. #7, PageID #43). These work limitations precluded Plaintiff from
performing his past relevant work. Id. at 46.
At Step 5, the ALJ concluded that Plaintiff was not under a disability because a
significant numbers of jobs exist in the national economy that he can perform, including
charge-account clerk and weight tester. Id. at 47. This conclusion led to ALJ Statum’s
ultimate finding that Plaintiff was not under a benefits-qualifying disability. Id. at 46-47.
The present judicial review determines whether ALJ Statum applied the correct
legal standards and whether substantial evidence supports her findings. Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). If she failed to apply the correct legal
criteria, her decision may be fatally flawed even if the record contains substantial
evidence supporting her findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009); see Bowen, 478 F.3d at 746; Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 546-47 (6th Cir. 2004). A conclusion is supported by substantial evidence when “a
‘reasonable mind might accept the relevant evidence as adequate to support a
conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc. Sec., 375
F.3d 387, 390 (6th Cir. 2004). Substantial evidence consists of “more than a scintilla of
evidence but less than a preponderance....” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007).
Plaintiff challenges ALJ Statum’s finding that “the medical evidence does not
support the need for oxygen therapy.” (Doc. #7, PageID #45). He contends that the
record repeatedly notes that he has been using supplementary oxygen therapy. His
treating pulmonologist, he points out, completed a report that unequivocally states he is
“on home O2.” (Doc. #8, PageID #1469 (citing PageID #1335 “and the record
generally”)).2 Plaintiff argues that the record is devoid of any medical evidence
contradicting his treating pulmonologist’s report and, consequently, “ALJ Statum’s
statement that ‘the medical evidence does not support the need for oxygen therapy,’
[PageID #45] is simply incorrect.” (Doc. #8, PageID #1470).
“There is no question that subjective complaints of a claimant can support a claim
for disability, if there is also objective medical evidence of an underlying medical
Plaintiff cites to the page number used by the Social Security Administration at the administrative level (here, page
number 1300) rather than to the PAGEID #s used in this case (page 1300 is PageID #1335). See General Order No.
Day 12-01, Pretrial and Trial Procedures, p.12 (S.D. Ohio, Feb. 2, 2012) (“Page references should be to the page
identification number (PageID __) which is added electronically to each page of a document filed with the Court.”)
condition in the record.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.
2003). ALJs, however, are not required to accept as credible a claimant’s subjective
reports of pain and other symptoms and “may properly consider the credibility of the
claimant.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (citation
omitted); see Jones, 336 F.3d at 476. An ALJ’s credibility findings “are to be accorded
great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness’s demeanor and credibility. Nevertheless, an ALJ’s assessment of a
claimant’s credibility must be supported by substantial evidence.” Walters, 127 F.3d at
531 (citations omitted).
Contrary to Plaintiff’s argument, the ALJ properly considered and discounted his
testimony about his need for oxygen therapy. Doing so, the ALJ set forth the correct
legal criteria to assessing a claimant’s credibility. See Doc. #7, PageID #44. And,
substantial evidence supports the ALJ’s conclusion that the medical evidence did not
confirm the need for oxygen therapy. Medical notes from both Salim Dahdah, M.D.
(Plaintiff’s cardiologist) and Shahid Bashir, M.D. (Plaintiff’s pulmonologist) showed
Plaintiff’s blood oxygen saturation levels were 94% or higher, on room air, as the ALJ
observed. Id. at 45, 774, 777, 1371. The ALJ also correctly noted that Plaintiff’s sixminute-walk test in February 2013 showed that his his blood oxygen levels did not
desaturate with exercise—his saturation level was 97% at the conclusion of the test. Id.
at 45, 1434-36. Based on such evidence, the ALJ reasonably discounted Plaintiff’s
testimony about his need to use oxygen.
The evidence Plaintiff relies on does not contradict the ALJ’s findings or the
evidence on which the ALJ relies. Plaintiff’s evidence, moreover, does not reasonably
corroborate his testimony that he always uses oxygen at home. At best, his evidence
establishes that he was treated with oxygen therapy during his time in the hospital on
several occasions. Such treatment is not reasonably probative of whether he needed to
always use oxygen at home or whether he would need it to be capable of performing a
limited range of sedentary work. Examination of the specific evidence Plaintiff relies on
reveals its shortcomings. In May 2012, at the emergency room, Plaintiff was frequently
noted to have even and unlabored breathing. Id. at 455. He was on oxygen briefly (a few
minutes) while he obtained his chest x-ray, which showed that his lungs were
hypoinflated and clear. Id. at 455, 459. He was admitted to the hospital, and his pulse
oximetry was 96%. Id. at 776-77. Normal pulse oximetry ranges from 95 to 100%;
values under 90% are considered low.3
On December 16, 2012, Plaintiff went to the hospital where he was placed on 2
liters of oxygen. Id. at 581. The doctor diagnosed pneumonia and admitted him to the
hospital for 4 days. Id. at 583. While his pneumonia was being treated, the plan was to
provide supplemental oxygen to keep his saturation levels above 92%. Id. at 589. There
does not appear to be any indication in these records that Plaintiff’s oxygen saturation
was, or fell below, 92%. Though Plaintiff had moderate shortness of breath on
examination, his saturation level was 94% without supplemental oxygen. Id. at 593.
Following treatment with IV antibiotics and steroids, Plaintiff improved and was
discharged home in good condition. The doctor prescribed inhalers and medication but
not home oxygen. Id. at 583-84. Indeed, discharge notes do not mention that he required
oxygen therapy at home. Id. at 583-84.
Plaintiff correctly refers to the fact that Dr. Bashir noted that he was “on home
O2.” Id. at 1335. But, Dr. Bashir did not indicate that Plaintiff needed to always use
home oxygen therapy or that he needed oxygen therapy in order to perform sedentary or
other work. Dr. Bahshir’s note, moreover, is not inconsistent with the respiratory
limitations the ALJ included in her assessment of Plaintiff’s residual functional
capacity—for instance, “no concentrated exposure to flumes, odors, dust, gases,
environmental pollutants, or poor ventilation,” id. at 43— and reasonably accounted for
Plaintiff’s credible limitations. This is further seen in the ALJ’s decision to limit him to
sedentary work, which is the lowest exertional level recognized under social security law.
20 C.F.R. § 404.1567(a). The ALJ also properly added postural restrictions to further
address the impacts of Plaintiff’s cardiovascular problems on his work abilities.
Plaintiff next contends that the vocational expert indicated that use of
supplemental oxygen has a significant impact on all available jobs. This occurred, in
Plaintiff’s view, when the vocational expert testified that no light exertional jobs would
be available to a person who needed to use supplemental oxygen. Plaintiff maintains that
the ALJ erred by not considering this clearly supported limitation in her remaining
hypotheticals to the vocational expert and, consequently, improperly relied on the
vocational expert’s testimony.
While Plaintiff accurately recounts the vocational expert’s testimony, his argument
is grounded on the premise that he needs oxygen therapy on a continuous or nearly
continuous basis. Because the ALJ did not err in discounting Plaintiff’s credibility
concerning his need for oxygen therapy, she likewise did not err in her formulation of the
hypothetical questions she posed to the vocational expert. “It is well established that an
ALJ may pose hypothetical questions to a vocational expert and is required to incorporate
only those limitations accepted as credible by the finder of fact.” Casey v. Sec’y of HHS,
987 F.2d 1230, 1235 (6th Cir. 1993).
In sum, the ALJ applied the correct legal criteria to his evaluation of Plaintiff’s
credibility and substantial evidence supports the ALJ’s credibility findings. The ALJ’s
credibility findings are therefore due great weight and deference. Walters, 127 F.3d at
531. Further, and as a result, Plaintiff has not shown that the ALJ’s hypothetical
questions lacked any credible limitation. The ALJ therefore did not err in relying on the
vocational expert’s testimony.
Accordingly, Plaintiff’s Statement of Errors lacks merit.
IT IS THEREFORE ORDERED THAT:
The ALJ’s determination that Plaintiff is not under a disability, and the
resulting denials of his applications for Disability Insurance Benefits
and Supplemental Security Income, are affirmed; and
The case is terminated on the docket of this Court.
September 27, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
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